Interim Decision #1730

Interim Decision #1730

MATTER OF TONGA

In Deportation Proceedings

A-14674907

Decided by Board May 8. 1967

.-Notwunstaumne the presence here of a citizen child and brother. respondent's

application for adjustment of status under section 245, Immigration and Nationalty Act, as amended, is denied as a matter of discretion in view of his

preconceived intent to remain in the United States permanently at the time he

obtained his nonimmigrant visitor's visa in 1904, as evidenced by the sale

shortly thereafter of his business in Tonga and the arrival in this country of

his alien wife and alien child as visitors approximately 2 months following

his entry.

CHARGE :

Order : Act of 1052—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant (temporary visitor)—Remained longer.

Os BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE

Harold b. Kline, Esquire

580 Washington Street

Stephen M. Snifin

Trial Attorney

San Francisco, California 94111

t Brief Sled)

(Brief filed)

On November 26,1965, the special inquiry officer denied the respondent's application for adjustment of status to that of a permanent resi-

dent, as a matter of administrative discretion; granted his alternative

request for voluntary departure; and provided for his deportation

from the United States to Tonga, on the charge contained in the

order to show cause, in the event of his failure to so depart. On May 23,

1966, this Board dismissed the appeal from that order of the special

inquiry officer, but solely on the ground that the respondent was not

statutorily eligible for the relief under consideration. On September 2,

1966, we ordered the proceedings reopened for reconsideration of the

question of adjustment of the respondent's status, on the basis of a

primary showing of statutory eligibility therefor. On November 18,

1966, the special inquiry officer reinstated his original decision in the

case. The respondent's appeal from that latter decision of the special

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inquiry officer, which again brings the case before this Board for

consideration, will be dismissed.

The record relates to a 27-year-old married male alien, a native

and citizen of Tonga, who last entered the United States on or about

October 12, 1964. He was then admitted as a temporary visitor, for

a period until April 12, 1965. On July 26, 1965, his application for

adjustment of status to that of a permanent resident was administratively denied. He was then granted until August 22, 1965, to depart

from the United States voluntarily. On August 6, 1965, the respondent

having indicated that he did not desire to depart but, rather, to

renew his application for adjustment of status in deportation proceedings, the privilege of voluntary departure was revoked. These

proceedings followed.

The foregoing establishes the respondent's deportability on the

charge contained in the order to show cause, which was conceded in

the course of the hearing before the special inquiry officer and stands

unchallenged here. The special inquiry officer has already granted the

respondent the privilege of voluntary departure, and the record before

us supports said official's action in this respect. The only question

remaining for our consideration is whether the special inquiry officer

has properly denied the respondent's application for 'adjustment of

his status to that of a permanent resident, as a matter of administrative

discretion.

The facts and circumstances on which respondent's request for

adjustment of his status are predicated have been adequately discussed

in the prior opinions in this case and need not be restated here in their

entirety. Briefly, the respondent's wife and their alien child cams to

the United States as visitors on December 28, 1964, approximately two

months after respondent's arrival. They also now have a native-born

citizen child of tender years. One of the respondent's brothers is a

naturalized citizen of the United States. The respondent is presently

employed by Trans World Airlines at a salary of $417 a month, and

appears to be able to support his family properly.

Before proceeding to a disposition of the case on the merits, brief

comment is required concerning our original decision herein, which.was

made a precedent (Int. Dec. No. 1588). Apparently, a misunderstanding of the intent and effect thereof. has arisen in the minds of the

special inquiry officer, the trial attorney and counsel for the

respondent.

The sole basis for our initial decision was the respondent's then

statutory ineligibility for relief. Obviously, therefore, any discussion

in our opinion at that time as to the question of whether or not favorable exercise of relief was warranted was of secondary importance

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and not decisive. We did discuss that aspect of the case, but only because it was then apparent to us that the special inquiry officer had

concluded his inquiry along those lines with the establishment of the

fact that the respondent had formed a "preconceived intent" to remain

in the United States and, thus, to circumvent the normal visa issuing

process, infra. We merely pointed out that there were other factors

which had to be considered, to wit, intervening equities. We did not

then decide, because we were not called upon to do so, that the factors

in this case were of such an unusually meritorious nature as to call for

favorable exercise of discretion.

The record reflects that this respondent had applied to the United

States Counsul in Fiji for an immigrant visa in 1961. When he applied

for the visitor's visa with which he gained admission to the United

States in 1964, he sent a letter to that Consul stating that he wished to

come to this country as a visitor, and that he would have to return to

Tonga because he was employed and his wife and child were there.

However, as soon as the respondent received a nonimmigrant visa, he

sold his business in Tonga. About two months after his arrival in the

United States, his alien wife and child came to this country—likewise

as visitors.. Also, the respondent has testified that when he 'came here

he intended to remain permanently, if he could.

We agree with the special inquiry officer that the foregoing factors

establish that the respondent had a preconceived intent to remain in

the United States permanently. The fact that his alien wife and child

followed him here so closely is clearly indicative of an overall scheme

for the entire family to circumvent the normal consular visa issuing

process. In our opinion, the misrepresentations to the consul abroad

thus established constitute unfavorable factors which outweigh the

favorable ones, to wit, the presence here of a citizen child and brother.

Accordingly, we conclude that the special inquiry officer has properly

denied respondent's request for this extraordinary form of discretionary relief. His decision, therefore, is affirmed.

ORDER : It is ordered that the appeal be dismissed.

I His wife has also applied for adjustment of status, and a decision thereon is

being held in abeyance pending a decision in this case.

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