V

                               MATTER OF V-

                       In SECTION 245 Proceedings
                                  A-11370672
               Decided by Assistant Commissioner November 24, 1959

Adjustment of status—Section 245 of 1952 act—Failure to present documents
 at time of admission as member of armed forces not considered unforeseen
 emergency for purpose of nunc pro tune waiver under section 212(d)(4)(A)
 of act.
(1)     Alien's arrival no member of United Statee Armed Forces without entry
  documents and without presenting himself for inspection did not constitute
  lawful admission as bona fide nonimmigrant qualifying him for adjustment
  of status under section 245 of the 1952 act.
(2) Where applicant in 1953 voluntarily enlisted in the United States Navy
  in the Philippines, could reasonably have expected to be sent to this country
  for training or duty, and had ample opportunity to obtain documents, his
  failure to present documents upon arrival in 1956 cannot he considered to
  have been the result of unforeseen emergency so as to warrant a 711171C pro
  tune documentary waiver under section 212(d) (4) (A) of the 1952 act.

                  BEFORE THE ASSISTANT COMMISSIONER

  Discussion: This case has been certified to the Central Office by
the Regional Commissioner at St.. Paul, Minnesota.
      The applicant is a 27 - year - old male, a native and citizen of the
Philippines. He enlisted in the United States Navy in the Philippines August 21, 1953. His last entry into the United States occurred on October 26, 1956, on the U. S. Naval Vessel Navarro at
San Siego, California, as a member of the United States Navy. He
married a citizen of the United States July 16, 1957, thereby becoming eligible for a nonquota immigrant visa. He was honorably discharged from the Navy August 1, 1957.
   On September 24, 1958, the applicant applied for adjustment of
status to that of a permanent resident under section 245 of the Immigration and Nationality Act, as amended. Eligibility in all other
respects having been established by the applicant, the only question
presented for determination is whether he may be regarded as having been admitted to the United States as a buiut fide uuuin:mi runt
at the time of his entry, described above, on October 26, 1956.
  Section 284 of the Immigration and Nationality Act provides that
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 an alien member of the Armed P'orces of the United States is not
 subject to inspection when entering the United States under military
 orders, but nothing in that section gives or confers upon such alien
 any other privilege, right, benefit, exemption or immunity which is
 not specifically granted by the Act. When in possession of appropriate documents, however, such an alien may present himself for
 inspection at the time of entry, and if found admissible, his admission may be recorded in the usual manner. If applying as a nonimmigrant, he may be admitted as a visitor for bu§iness for the duration of his military service. The applicant had no entry documents
 and did not present himself for inspection at the time he arrived
 in the United States on October 26, 1956. Consequently, there is no
 r: Word of his lawful admission at any time.
    Even though he had no entry documents, he could have presented
 himself for inspection at the time of his arrival, and, if found otherwise admissible, he could have requested a waiver of the passport
 and nonimmigrant visa, requirements as provided for in section 212
 (d) (4) (A) of the Immigration and Nationality Act. However,
under that provision of la w he would have been required to establish that his failure to present the required documents resulted from
an unforeseen emergency. If the waiver were granted, a record could
have been made of the applicant's admission as a nonimmigrant..
    The district director has utilized that procedure in this application.
The applicant was examined and was found admissible as a nonimmigrant as of the date of arrival in the United States. He filed
an application for a nuns pro tune waiver of the passport and nonimmigrant visa requirements under the provisions of section 212
 (d) (4) (A) of the 1952 act. The waiver was granted and the applicant was considered to have been lawfully admitted as a bona fide
nonimmigrant on October 26, 1956. On the basis of that presumptive lawful admission as a nonimmigrant, the application for status
as a permanent resident in the United States was approved and the
case came forward on certification.
    In order for such a procedure to stand, it must be found that th
applicant's failure to present a valid passport and a valid non
immigrant visa at, the time of his arrival on October 26, 1956, we
the result of an unforeseen emergency. The facts in this case d
not sustain such a finding. The applicant voluntarily enlisted
the United States Navy in the Philippines. In the normal course
events he could reasonably expect to be cent to the United Stat
for such training or duty as might be required in line with 1
duties in the Armed Forces. He had ample opportunity, in s
vance, to secure the necessary documents. He has not establish
that his failure to have the required documents at the time he
rived in the United States was the result of emergent circumstan

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which he could not have foreseen. Since his failure to present the
necessary documents cannot be held to be the result of an unforeseen
emergency, the record of lawful admission as a nonimmigrant created on that basis will be set aside.
  Since the applicant was not lawfully admitted into the United
States as a bona fide nonimmigrant at the time of his entry on October 26, 1956, the application will be denied.
   Order : It is ordered that the application be denied on the ground
that the applicant was not lawfully admitted into the United States
as a bona fide nonimmigrant.




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