56240/338
Decided by Central Office, August 10, 1949 Oral Argument Granted by Board, November 8, 1949 Jurisdictional Decision by Board, February 27, 1950
Preexamination — Application under 8 C.F.R. 142 — Jamaica, British West Indies as an island "adjacent" to the United States — "Exceptionally meritorious" case — Jurisdiction of Board of Immigration Appeals to direct preexamination (on appeal) prior to the institution of warrant proceedings.
Where no warrant proceedings have been instituted, and an application for preexamination under the provisions of 8 C.F.R. 142 has been denied by the Central Office, the Board of Immigration Appeals does not have jurisdiction on appeal, since the provisions of 8 C.F.R. 90.3 should be read in conjunction with those of 8 C.F.R. 142.2.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a single male native of Jamaica, subject of Great Britain, 32 years of age, who last entered the United States on June 4, 1943, at the port of New Orleans, La. At that time he was admitted to March 31, 1944, as an agricultural worker under the act of April 29, 1943.
The attorneys for the alien are requesting preexamination under the provisions of 8 C.F.R. Part 142. Title 8 C.F.R. 142.1 provides, in part, that certain aliens whose cases are exceptionally meritorious or who, under other conditions stated, are nevertheless not citizens of islands adjacent to the United States may apply for preexamination.
It is alleged that Jamaica is not an island adjacent to the United States and, that if it is adjacent to this country, the case is nevertheless an exceptionally meritorious one and that preexamination should be authorized.
When the term "adjacent" was used in the preexamination regulations it was intended by this Service to refer to the islands which are near the United States and to which aliens may proceed without great difficulty in order to obtain an immigration visa. It was not intended that people who could go to such islands without any difficulty would be granted the preexamination privilege unless their cases were exceptionally meritorious. The fact that a dictionary definition of the term adjacent, as quoted by one of the attorneys for this alien, would seem to indicate that Jamaica may not be adjacent is not governing. We believe Jamaica is an adjacent island within the meaning of the regulations.
We must, therefore, determine whether the case is an exceptionally meritorious one for, if it is not, preexamination may not be authorized. In this connection it is noted that the subject is alleged to have served the economic program of the United States while he was working as an agricultural laborer, is of good moral character, has no ties in Jamaica but that his family are long-time residents of the United States. It is alleged that his father and step-mother are naturalized citizens of this country and that his step-sister is a nurse and a native-born citizen. It is further alleged that his father has extensive property in this country and that the subject will not become a public charge. In the subject's application for preexamination he notes that he has assets of $125 in the United States and $3,000 in a bank in Jamaica.
We do not believe that these circumstances render the case exceptionally meritorious. The case presents no unusual or extraordinary factors. There is no allegation that anybody is dependent upon him for support or that his absence while awaiting a visa in Jamaica would render a hardship to anybody in this country.
Recommendation: It is recommended that the application for preexamination be denied.
So ordered.
Discussion: In this case the attorneys have submitted an appeal to the Board and in conjunction therewith request oral argument.
It appears that on August 10, 1949, the Assistant Commissioner denied the petition for preexamination which has been submitted herein. It is indicated on the face of the Service's memorandum that no appeal lies to the Board. It appears that Mr. N---- is a native of Jamaica, subject of Great Britain, and that preexamination was petitioned for under part 142, title 8 C.F.R.
Thus issue is joined on the question of whether there is jurisdiction in this Board to consider the appeal submitted by the attorneys. We will grant oral argument solely on the question of jurisdiction.
Order: It is ordered that oral argument be granted on the question of jurisdiction in this case.
Discussion: This is an appeal from an order entered by the Assistant Commissioner on August 10, 1949, wherein the respondent's application for preexamination was denied. Counsel on appeal urges that this Board has jurisdiction to direct preexamination prior to the institution of warrant proceedings. The issue before us, therefore, is solely one of jurisdiction.
The record relates to a native of Jamaica, subject of Great Britain, male, 32 years of age, who last entered the United States on June 4, 1943, at the port of New Orleans, La. He was admitted to March 31, 1944, as an agricultural worker under the act of April 29, 1943. He petitions for preexamination under part 142 of title 8 C.F.R.
Upon careful consideration of section 90.3 of title 8 C.F.R., we are of the opinion that the language there used was intended to cover an appeal in a preexamination case from an adverse ruling by a board of special inquiry after the alien has gone through the deportation process. In other words, section 90.3 should be read in conjunction with section 142.2 Obviously, under the latter section we can grant any relief appropriate in deportation cases. Since this is not a deportation case, we conclude that this Board does not have jurisdiction.
Order: It is directed that the appeal be and the same is hereby dismissed.