A-6729937
Decided by the Board November 24, 1953
Preexamination — Application not preserved where eligibility did not exist on December 23, 1952.
Preexamination has been preserved administratively through December 23, 1952, provided a valid application and eligibility for preexamination coexisted on that date. An alien who applied for preexamination in 1950 but who by reason of having been divorced from his United States citizen wife was not the husband of a United States citizen on December 23, 1952, and, therefore, could not meet the requirements for preexamination on that date, and who did not again marry a United States citizen until May 1953, may not have his 1950 application for preexamination reconsidered at this time.
BEFORE THE BOARD
Discussion: This case is before us on motion of counsel for reconsideration of the Board's decision of August 23, 1953, denying a motion to reopen to permit the alien to reapply for preexamination. Voluntary departure had previously been granted by the Board on November 5, 1952.
Respondent, a 56-year-old native and citizen of Poland, sought admission to the United States at New York on March 18, 1948. He was admitted by a board of special inquiry on March 22, 1948, as a visitor for 3 months with an application for an extension of his temporary stay being denied on September 13, 1948. On May 5, 1952, the Assistant Commissioner found respondent deportable as an alien remaining longer than the permitted time (secs. 14, 15, act of 1924), and this determination was affirmed by the Board on November 5, 1952. After respondent's first entry in 1948, he married a United States citizen and then sought to adjust his immigration status on this basis. However, respondent and his citizen wife were divorced and the alien was only eligible for relief in the form of voluntary departure, which was granted by the Board on November 5, 1952.
Counsel now reports that respondent resided in France for 18 years prior to his arrival in the United States, but has lost any right to return to that country. Counsel alleges that it is also impossible for respondent to return to his native Poland because of the fear of persecution. Counsel states that Israel will accept the alien, but that documents are not now available and in view of the consular backlog, probably will not be available for from 4 to 6 months.
Counsel informs us that respondent remarried in May 1953 to a United States citizen and therefore seeks reconsideration of the denial of preeexamination, for which he applied in 1950. Counsel reports that a visa petition in behalf of the alien has been approved by the Immigration Service and this approval was sent to the American consulate in Montreal, Canada, in preparation for the issuance of a visa.
With regard to counsel's request that respondent's 1950 application for preexamination be reconsidered, we note that at the time of this application for preexamination respondent was married to his first United States citizen wife, rather than his present United States citizen wife. Preexamination was abolished upon the enactment of the Immigration and Nationality Act of 1952 (Public Law 414, 83d Cong.). Administratively, the privilege of preexamination has been preserved for aliens through December 23, 1952, provided the alien met the requirements for this relief on that date, and then had a pending application for preexamination.
8 C.F.R. 142.1, 142.2 (b).
In the instant case, a valid application for preexamination and the status for eligibility for preexamination did not coexist on December 23, 1952. Counsel stated that respondent married his second wife in May 1953, when preexamination was no longer available to him as the husband of a United States citizen, while on December 23, 1952, he was not married to a United States citizen as a result of the prior divorce. Respondent clearly was not eligible for preexamination on December 23, 1952. The motion is accordingly denied.
As an unmarried alien, respondent needed 5 years' residence in the United States and to be able to readily obtain an immigration visa on this date. Such was not the case in the present situation.
Order: It is hereby ordered that the motion be denied.