CHU

Interim Decision #2175

MATTER OF CHU

In Section 249 Proceedings

A-17528669

Decided by Regional Commissioner December 5, 1972

Where Service action to adjust an alien's status to that of a nonimmigrant

pursuant to the provisions of section 247 of the Immigration and Nationality

Act failed to adhere to the substantive provisions of the governing regulation

(8 CFR 247.11), thereby constituting a denial of due process, the section 247

action was null and void. Hence, the alien's subsequent application for the

creation of a record of lawful admission for permanent residence under section

249 of the Act is denied on the basis he is a lawful permanent resident of the

United States notwithstanding the prior section 247 action.

This matter is before the Regional Commissioner on certification

as provided by 6 CFR 103.4 for review of the District Director's

decision denying the application for status as a permanent resi-

dent under section 249 of the Immigration and Nationality Act, as

amended. •

Insofar as pertinent to the present application, section 249

provides for the creation of a record of lawful admission for

permanent residence in the case of an alien who establishes that

he (a) entered the United States prior to June 30, 1948, (b) has had

his residence in the United States continuously since such entry,

(c) is a person of good moral character, and (d),is not ineligible to

citizenship.

The applicant is a 26 year-old unmarried citizen of China born in

Washington, D. C. on November 23, 1946 while his father, Kuang-

Che Chu, was assigned to the Embassy of China in Washington in

a diplomatic status (attache) which exempted him and members of

his family from the jurisdiction of the United States, Thus the

applicant was born not subject to the jurisdiction of the United

States and therefore did not derive United States citizenship

under the Fourteenth Amendment to the Constitution. (See

United States v. Wong Kim Ark, 169 U.S. 649.) He has never

departed from the United States.

The District Director denied the application because he found

that the applicant already had the status of a lawful permanent

resident alien by virtue of his birth in the United States. (Matter of

Huang, 11 I. & N. Dec. 190.)

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Interim Decision #2175

The applicant's mother is a staff member of the United Nations

holding the post of calligrapher in the Office of Conference Serv-

ices. In March of 1967 this Service received a routine request from

the United Nations for a change of status for Mrs. Chu to that of a

staff member of the United Nations under section 101(aX15)(GXiv)

of the Immigration and Nationality Act. This request was rou-

tinely granted and a new temporary entry record (Form 1-94) was

issued. (Mr. Chu, the applicant's father, at that time was employed

by the Chinese Government Procurement and Service Mission at

New York and entitled to nonimmigrant status under section

101(aX15)(A) of the Act.)

Because the applicant had previously been listed in the passport

of his mother and had by then been issued a passport of his own,

in May of 1967 the United Nations forwarded to this Service the

applicant's passport requesting that he be granted "G-4" status as

a member of Mrs. Chu's household. He was then twenty years of

age. The Service also routinely granted this request and issued a

temporary entry record (Form 1-94) showing a change to "G-4"

status for the duration of such status, apparently not realizing

that the applicant was entitled to status as a permanent resident

.

of the United States. This action ostensibly resulted in a change of

status from that of a permanent resident to that of a nonimmi-

grant as provided for in section 247 of the Immigration and

Nationality Act.

Section 247 provides as follows:

(a) The status of an alien lawfully admitted for permanent residence shall be

adjusted by the Attorney General, under such regulations as he may prescribe,

to that of a nonimmigrant under paragraph (15)(A), (15)(E), or (15XG) of section

101(a), if such alien had at the time of entry or subsequently acquires an

occupational status which would, if he were seeking admission to the United

States, entitle him to a nonimmigrant status under such sections. As of the date

of the Attorney General's order making such adjustment of status, the Attorney

General shall cancel the record of the alien's admission for permanent residence,

and the immigrant status of such alien shall thereby be terminated.

(b) The adjustment of status required by subsection (a) shall not be applicable

in the case of any alien who requests that he be permitted to retain his status as

an immigrant and who, in such form as the Attorney General may require,

executes and files with the Attorney General a written waiver of all rights,

privileges, exemptions, and immunities under any law or any executive order

which would otherwise accrue to him because of the acquisition of an occupa-

tional status entitling him to a nonimmigrant status under paragraph (15)(A),

(15)(E), or (15)(G) of section 101(a).

In the regulations prescribed by the Attorney General for

administering section 247 of the Act, 8 CFR 247.11 reads, insofar

as here pertinent:

Notice. If it appears to a district director that an alien residing in his district,

who was lawfully admitted fur permanent residence, has an occupational statue

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Interim Decision #2175

described in section 247 of the Act, he shall cause a notice on Form 1-509 to be

served on such alien by personal service informing him that it is proposed to

adjust his status, unless the alien requests that he be permitted to retain his

status as a resident alien and executes and files with such district director a

Form 1-508 (Waiver of Rights, Privileges, Exemptions, and Immunities)* * * *,

within 10 days after service of the notice, or the alien, within such 10-day period,

files with the district director a written answer under oath setting forth reasons

why his status should not be adjusted. The notice shall also advise the person

that he may, * * * * within such period and upon his request have an opportu-

nity to appear in person, in support or in lieu of his written answer, before an

immigration officer designated for that purpose * * * *.

In acting to adjust the status of the applicant in 1967 to that of a

nonimmigrant under section 101(a)(15)(GXiv) of the Act, the Serv-

ice did not place the applicant or his guardian (the applicant being

then a minor) on notice of its intention to take the action. Neither

was afforded an opportunity to object to the pro,poSed change of

status and offer representations why such, action should not be

taken. They were not afforded the opportunity to file a Form 1-508

(Waiver of Rights, Privileges, Exemptions, and Immunities).

Clearly, the Service failed to adhere to its own published regula-

tions when it purportedly changed the applicant's status.

Numerous court decisions have held that failure of the Service

to adhere to published regulations may deny due process of law.

(Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945);

Aceard'i v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681

(1954); Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d

1403 (1957); Fragale v. Rogers, 175 F. Supp. 658 (1959)).

The District Director has decided that the nature of the action

taken in 1967 to adjust the applicant's status was a substantive

violation of published Service regulations resulting in a denial of

due process of law and therefore null and void. Further, he has

concluded that the applicant has never lost his status derived at

birth as a lawful permanent resident alien. We concur with these

conclusions and agree that under the circumstances the applica-

tion must be denied.

When afforded the opportunity to do so on December 28, 1971,

the applicant executed and filed a Form 1-508 (Waiver of Rights,

Privileges, Exemptions and Immunities) indicating his desire to

retain the status of a lawful permanent resident. Additionally, on

August 24, 1972 he filed an Application to File Petition for

Naturalization which is currently pending.

It is ordered that the application for creation of a record of

lawful permanent residence be denied..

It is further ordered that the applicant be considered to be a

lawful permanent resident of the United States from the date of

his birth on November 23, 1946.

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