FICALORA

Interim Decision #1578

MATTER OF FICALORA

In Deportation Proceedings* .

A-14341964

Derided by Board April 21, 1066

(1) The special inquiry officer does not have authority in deportation proceed-

ings to determine an alien's elegibility for sixth preference status in con-

junction with an application for adjustment of status pursuant to section

245 of the Immigration and Nationality Act, as amended, nor does the Board

of Immigration Appeals have appellate jurisdiction over such question, the

sole determination, thereof resting with the District Director and the Re-

gional Commissioner (8 CPR 103.1(e) (2) and (f) ).

(2) Where a visa petition, filed just prior to the deportation hearing, to accord

respondent status under the then current sixth preference portion of the

Italian quota was not accepted by the Service but was returned because not

accompanied by a certification from the Secretary of Labor, as required, the

special inquiry officer did not err in failing to defer his decision pending

re--pondent's complianie with the certification requirement.

CEIARGE:

Orde- Act of 1952—Section 211(a) (9) (8 U.B.C. 12817 .Nonimmigrant

(temporary visitor. for pleasure changed to student)

—failed to comply with conditions - of status.

The special inquiry officer, in a decision dated December 10, 1965

denied the respondent's application for adjustment of his status to

that of a permanent resident; granted his alternative request for vol-

untary departure; and provided for his deportation from the United

States to Italy, on the charge contained in the order to show cause,

• in the "event of his failure to so depart. The respondent's appeal -

from* that decision, which brings the case before this Board for con-

sideration, will be dismissed.

This record relates to a 28-year-old male alien, married,' who is a.

native and citizen of Italy. He last entered the United States on or

about September 20, 1964. He was then admitted as a; nonimmigrant

Be has a wife and child who are „residents of Italy and are apparently

natives abd citizens of that country.

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Interim Decision . 15"1"4

temporary visitor for pleasure. His status was subsequently changed

to that of a nonimmigrant student. He was thereafter authorized to

remain in the United States in the latter status until September 1,

1966.

At the hearing - before the special inquiry officer, the respondent

contended that he was still attending school. It was, hoviever, es-

tablished that the school which he was then attending and had recent-

ly enrolled in was not the school which had been approVed by the

Immigration and Naturalization Service as the institution of learn-

ing he was to attend as a student. Also, the respondent had ob-

tained no permission to change from one school to another. He had

attended the school that had been approved for him only one day

because he did not like the school.

The respondent has conceded the correctness of the facts herein-

before recited. They establish his deportability on the charge con-

tained in the order to show cause. The respondent's deportability

has. in fact, now been conceded. This aspect of the case requires no

fu rt her discussion.

The special inquiry officer has granted the respondent's alterna-

tive request for voluntary departure. Suffice it to say, in this con-

nection, that the record before us supports said official's action in

this respect.

The only remaining issue is whether the special inquiry officer has

properly denied the respondent's basic request for adjustment of his

status to that of a permanent resident. Our answer is in the affirma-

tive, for the reasons hereinafter set forth. In reaching this decision,

we hare considered and rejected the respondent's contention that the

special inquiry officer erred in failing to:

assume jurisdiction over the question or tne respondent's eligibility for

sixth preference status; or

(2) defer his decision pending action by the District Director in connection

therewith.

The respondent is allegedly presently employed as a tile setter,

brick layer and stonemason. Just prior to the hearing before the

special inquiry officer, the respondent submitted to the Immigration

and Nationalization Service a petition filed by his employer to have

him accorded sixth preference status under the Italian quota, on the

basis of such employment. Despite the fact that said portion of the

Italian quota appeared to be current, the Service did not accept the

petition, but instead returned it to the respondent. The reason was

that a labor clearance certificate was not submitted With the visa pe-

tition. In that posture of the case, then, the .special inquiry_ officer

ruled the respondent ineligible for adjustment of his str. us to that of

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Interim- D,ecisi on #1578

ft. permanent resident, solely on the ground that he did not have a visa

readily available - to him.

8 CFR 204.1(d). specifies that a petition (Form 1-140) to have an

alien classified as a preference immigrant under section 203(a) (6) of ,

the Immigration and Nationality Act 18 U.S.C. 1153) must be ac-

-

companied by a certification of the Secretary of Labor before it may

be accepted by the Service and. considered properly filed; and that

no appeal shall lie from a decision denying the petition for lack of

the certification by the Secretary of Labor. 8 CFR 245.1(d) provides.

that an applipioit for- preference status such as this respondent is

not eligible for the benefits of section,. 245 of the Immigration and

Nationality Act (8 :U.S.C: 1255) unless he is the beneficiary of a val-

id unexpired visa petition filed in accordance with a CFR 204 and

approved' to accord him such status. 8 CFR 103.1(e) (2) and (f)

places the determination of -whether or not an alien possesses the

qualifiCations for sixth preference statm`solely within the jurisdiction

of the appropriate District Director and Regional Commissioner. 8

CPR 242.8 does not vest in the special inquiry officer authority over

such a question: And CFR 3.1(b) (5) specifically excepts appellate

jurisdiction of such a question from this Board: -

The foregoing regulations have the force and effect of law (Di

Mimi v. (1M, 96 F.2d 92). ' They are binding on all the parties here

concerned. Clearly• in the light thereof and the specific provision of

the regulations, the special inquiry officer properly ruled this re-

spondent ineligible for adjustment of his status to that of a perma-

nent resident. By the same token, respondent's argument that the

-

special inquiry officer erred in failing to pass upon the question of

the respondent's eligibility for sixth preference status is completely

devoid of validity. The same is true' of his assertion that this Board

should do so now.'

We likewise find without merit the claim that the 'Special inquiry

officer should have deferred his decision until the respondent had the

opportunity to comply with the foregoing provisions of the regula-

tions, or that this Board should now enter an order to - that effect.

Despite the passage of four months since the entry of the special

inquiry officer's order, there is no showing here of what, if any,

efforts the respondent has, made to comply with the applicable pro-

visions of the pertinent regulations hereinbefore set forth. If he has

made appropriate efforts in this connection, then they would be prop-

erly a matter for the consideration of the apprOpriate District Di-

rector in setting the time for the respondent's voluntary departure

or, upon his failure to so.depart, in fixing the time for his deporta-

tion. In the latter contingency, as we have previously pointed out

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Interim Decision *1578

(Matter of I—, A-13212,870 10 I. & N. Dec. 372) then would be the

appropriate time for respondent to raise the question of the power of

this Board•to see that justice is done. In any event, resptindent has

available to him the remedy of a motion for reconsideration should

future events in connection with his visa petition render such action

appropriate.

tiAs we have hereinbefore pointed out, the law and the existing

regulations are binding on all parties here concerned. Obviously,

therefore, respondent's complaints about the confusion resulting from

recent changes in the law and poisible delay in obtaining the neces-

sary "clearance order" to be issued by the Secretary of Labor, as re-

quired lay the implementing regulations, lie elsewhere than with this

Board. Accordingly, and in view of the foregoing, the special in-

quiry officer's order will be affirmed.

ORDER: It is, ordered that the appeal_ be and the same is hereby

dismissed,

595