A-10463832
Decided by Regional Commissioner February 18, 1958 Approved by Assistant Commissioner
Nonimmigrant status — Not necessarily precluded by previously expressed desire to enter as immigrant.
Adjustment of status — Section 245 — Nonquota status limited to section 101 (a) (27) (A) — Good moral character requirement derives from Attorney General's discretionary power.
(1) That applicant previously expressed desire to enter the United States as an immigrant and may still have such desire does not in itself preclude issuance of a nonimmigrant visa nor preclude his being a bona fide nonimmigrant.
(2) In application for adjustment under section 245 of the 1952 act, claim to nonquota status must be based on section 101 (a) (27) (A) of the act. Nonquota status acquired by birth in a nonquota country, section 101 (a) (27) (C), is not within the contemplation of section 245.
(3) Administrative requirement that applicant under section 245 establish good moral character for 5 years prior to filing application derives from statutory mandate that adjustment be made in the exercise of the Attorney General's discretion and constitutes reasonable and proper criterion for determining whether discretion should be exercised in an individual case.
(4) No "hearing" is required or provided for in adjustment of status under section 245. However, where report of neighborhood investigation contains allegations reflecting adversely on applicant's character, applicant will be afforded an opportunity to reply thereto and to submit such additional evidence as he desires to meet his burden of proving good moral character.
BEFORE THE REGIONAL COMMISSIONER
Discussion: This matter comes forward on appeal from the order of the District Director, San Francisco, California, dated December 10, 1956, denying the application on the ground that the applicant was not a bona fide nonimmigrant at the time of his admission.
The applicant, a 26-year-old married male, native and citizen of Bolivia, has resided continuously in the United States since his last admission at San Ysidro, California, on November 14, 1955, as a nonimmigrant visitor, classification B-2, to March 13, 1956.
The record shows that the applicant was married to a native-born citizen of the United States at Oakland, California, on September 30, 1955. He was previously admitted to the United States at New Orleans, Louisiana, on October 28, 1952, as a nonquota student under section 4 (e) of the Immigration Act of 1924, as amended. He failed to maintain that status. At his hearing before a special inquiry officer he was found to be deportable from the United States. He requested the privilege of voluntary departure. The special inquiry officer ordered voluntary departure, with an alternate order of deportation. He departed from the United States voluntarily on October 13, 1955, by air, at Los Angeles, California, destined to Mexico City.
The record indicates that on October 17, 1955, while in Mexico City, he applied for an immigrant visa, stating in his application that he intended to enter the United States to join his wife, S---- F----, continue his studies, and work in this country.
Testimony contained in the record, as given by the applicant, indicates that through a telephone call and cablegrams from his brother-in-law he was requested to go to New York and temporarily aid the brother-in-law as his interpreter in some business negotiations; that as urgency was indicated, he withdrew his application for an immigrant visa and applied for a nonimmigrant visa in order to go to New York and later visit his wife in Berkeley, California. This testimony further states that the nonimmigrant visa was refused on the ground that the alien was an immigrant.
The record also indicates that he next applied for a nonimmigrant visa at the American Consulate located in Tiajuana, Mexico. This application indicated his intention to enter the United States for a period of 4 months, en route to C---- F----, Berkeley, California; that this was a pleasure trip; and that the applicant's marital status was single. A nonimmigrant B-2 visa was issued the applicant by the American Consul in Tiajuana on November 14, 1955. In his testimony the applicant stated that it was his intention at the time he applied for this nonimmigrant visa and at the time he entered the United States to first go to New York to assist his brother-in-law and then to Berkeley, California, to visit his wife and discuss with her the possibility of her returning to Bolivia with him.
On November 14, 1955, the applicant was admitted to the United States as a nonimmigrant visitor at San Ysidro, California. He proceeded first to Berkeley, California, for a 1-day stay, thence to New York for about 10 days, returning to Berkeley where he has since remained with his wife. The record contains no evidence that the applicant from the date of his last admission to March 12, 1956, when he filed his instant application, committed any action or manifested any intention that would cause him to lose his status of nonimmigrant visitor.
Deportation proceedings were commenced at San Francisco, California, on April 25, 1956, under an order to show cause based upon his having obtained his nonimmigrant visa by willfully misrepresenting a material fact. These proceedings culminated in the special inquiry officer's order of May 10, 1956, wherein the applicant was ordered deported under section 241 (a) (1) of the Immigration and Nationality Act, in that, at the time of entry, he was within one or more of the classes of aliens excludable by law existing at the time of such entry; to wit, section 212 (a) (19) of the act, in that he had procured a visa or other documentation by fraud or by willfully misrepresenting a material fact. This order was appealed to the Board of Immigration Appeals. On July 18, 1956, that Board dismissed the appeal.
On September 13, 1956, the applicant filed a petition for review of the deportation proceedings and order of deportation in the United States District Court for the Northern District of California, Southern Division. On April 12, 1957, the court found that the charges contained in the warrant of deportation were not sustained by reasonable, substantial, and probative evidence and ordered that the warrant of deportation be declared void. The Government took no appeal from this decision.
In its order, the court disposed of the question of deportability under the charges then urged against the alien. The court was not required to, and in fact did not, determine whether the applicant was a bona fide nonimmigrant at the time of his admission to the United States on November 14, 1955, or whether such nonimmigrant status was subsequently forfeited. Those questions are presently before me for consideration as they form the basis for the district director's decision in the instant proceeding.
The record contains no evidence that the applicant, either at the time he applied for the nonimmigrant visa or at the time he applied for admission as a nonimmigrant, manifested an intention to enter the United States for any purpose other than to visit temporarily and return to his homeland. He testified that in connection with his application for a nonimmigrant visa at the American Embassy he stated his desire to enter the United States to go to New York to interpret for his brother-in-law, thence to Berkeley, California, to visit with his wife in an effort to have her return to Bolivia with him. He further testified that in connection with his application for the nonimmigrant visa made to the American Consul in Tiajuana, he expressed his desire to go to New York to meet his brother-in-law, then to Berkeley, California, to visit his wife, and, if she agreed, to take her back to Bolivia with him. This testimony stands unrefuted except for the fact that in the application for the nonimmigrant visa typed by an employee of the consulate in Tiajuana and signed by the applicant, he was shown as "single" by the placing of "x" marks and shown as going to visit a "C---- F----." The alien explains these inaccuracies as being errors of the typist and points to several typographical errors made at the same time. These notations were the basis for the deportation charge and held by the court to be immaterial to the alien's eligibility for the nonimmigrant visa obtained.
The fact that the applicant previously expressed a desire to enter the United States as an immigrant — and may still have such desire — does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant ( United States v. Reimer, 10 F. Supp. 992 (S.D.N.Y., 1935); Chryssikos v. Commissioner of Immigration, 3 F. (2d) 372 (C.C.A. 2, 1924); United States ex rel. Rizzo v. Curran, 13 F. (2d) 233 (S.D.N.Y., 1925)). State Department regulation 22 CFR 42.22 (a) (2) providing that quota immigrant visa applicants may be retained on the visa waiting list as long as they are not aliens who are in the United States in willful violation of their nonimmigrant status, indicates that an alien may register for an immigrant visa and, pending its issuance, apply for and receive a nonimmigrant visa. As previously set forth herein, the applicant was born in Bolivia and for immigrant visa classification purpose was entitled to nonquota status. Had it not been for the urgency of his brother-in-law's request, he would have remained in Mexico City until his application for a nonquota immigrant visa was completed and the visa issued. This is not the case of an alien using the guise of a nonimmigrant to come to the United States because of unavailability of the quota.
The court's order found that the evidence of fraud and misrepresentation was not reasonable, substantial or probative. No new evidence on this issue has been submitted in this proceeding. It follows that for the purpose of this application the alien did not obtain his nonimmigrant visa by fraud or misrepresentation. For the reasons previously advanced herein, the evidence is insufficient to establish that at the time of admission to the United States the alien was not a bona fide nonimmigrant, or that he otherwise entered unlawfully, or that he failed to maintain his nonimmigrant status prior to March 12, 1956, when the instant application was submitted.
Turning now to the applicant's instant application. In order to qualify for adjustment of status under section 245 of the Immigration and Nationality Act, the following basic requirements must be met by the alien:
(1) Was lawfully admitted to the United States as a bona fide nonimmigrant.
(2) Is continuing to maintain that status.
(3) Entered the United States in good faith as a nonimmigrant.
(4) Makes application for adjustment.
(5) Is admissible to the United States for permanent residence.
(6) A quota or nonquota immigrant visa is immediately available to him at the time of filing his application for adjustment.
(7) A quota or nonquota immigrant visa is immediately available to him at the time his application is approved.
(8) If claiming a nonquota status under section 101 (a) (27) (A), he has been in the United States for at least one year prior to acquiring that status.
(9) Must establish good moral character for 5 years prior to filing the application.
As previously set forth herein, the applicant has met the requirements in (1) through (4) above.
As to requirement (5), the record contains a United States Public Health certificate indicating he is not inadmissible on medical grounds and a statement by the examining officer that he is admissible to the United States for permanent residence.
As to requirements (6) and (7), the applicant's nonquota status acquired by his birth in a nonquota country does not qualify him for adjustment under section 245, as only 101 (a) (27) (A) nonquota status is contemplated by the statute. However, the applicant is married to a United States citizen and thereby qualifies for nonquota visa status under section 101 (a) (27) (A) of the Immigration and Nationality Act. An immigrant visa was and is immediately available to him. A petition is not required to establish eligibility for visa classification in applications filed under section 245.
As to the physical-presence requirement set forth in (8) above, it is not a requisite that this presence be acquired immediately preceding the acquisition of nonquota status under section 101 (a) (27) (A). Presence in the United States for 365 days in the aggregate at any time prior to the marriage is sufficient. The applicant has more than met this test, as the record reveals his presence in this country as a 4 (e) student from October 28, 1952, to the date of his marriage on September 30, 1955.
The requirement that an applicant for adjustment of status under section 245 establish good moral character for the 5 years prior to the filing of his application, derives from the statutory mandate that such adjustment be in the exercise of the Attorney General's discretion. Such requirement furnishes a reasonable and proper basis, among others, for determining whether the discretion should be exercised in a particular case.
The instant record contains the results of security checks not adverse to the applicant and a statement from the police department having jurisdiction over his place of residence to the effect that "there is nothing in their Record Division files to indicate that the applicant has been guilty of conduct subversive to good order, national security, or the structure of institutions."
The report of the neighborhood investigation conducted by this Service contains allegations reflecting on the good moral character of the applicant. The attorney of record has stipulated and agreed that "a neighborhood character investigation report may be considered in connection with the subject's application without further hearing if it contains no adverse information." While the use of the word "hearing" by counsel is incorrect and ill advised since no hearing is required or provided for in the adjudication of an application for adjustment of status under section 245 of the act, the limitation of his stipulation precludes consideration of the investigative report at this time without confronting the applicant with the adverse information and affording him an opportunity to reply thereto and to submit such additional information as he desires to sustain the burden of proof which is upon him of establishing his good moral character for the 5 years prior to the filing of the instant application.
The record establishes that all of the requirements have been met except that set forth in paragraph (9) above relating to good moral character. Accordingly, the applicant's appeal will be sustained and the case remanded to the district director for further consideration consistent with this decision.
Order: It is ordered that the subject's appeal from the order of the district director denying his application for adjustment of status from nonimmigrant to permanent resident be and the same is hereby sustained.
It is further ordered that the case be remanded to the district director for further consideration of the application consistent with this decision.