Interim Decision #2806

Interim Decision #2806

MATTER OF CALICA

Application for Admission as Permanent Resident Under Section

203(g) of the Immigration and Nationality Act

A-22264180

Decided by .Regional Commissioner December 6, 1979

(1) Applicant, a 25-year-old unmarried native and citizen of Poland was first admitted

into the United States as a nonimmigrant visitor on July 5, 1976. On September 19,

1978, he was granted political asylum in the United. States and the privilege of

departing voluntarily by September 19, 1979. After two years and four months

physical presence in the United States, lw was issued a Refugee Travel Docuuteut

November 30, 1978, and was paroled as a refugee upon his return from Canada on

December 23, 1978. On January 16, 1979, he requested permanent resident status under

section 5 of the Act of October 5, 1978, Pub. L 95-412, effected in accordance with

section 203(g) of the Immigration and Nationality Act, B U.O.O. 1153(g).

(2) Though section 203(g) is not specific as to whether its two year residence requirement applies only to residence as a refugee, the legislative history of Pub. L. 95 412

reveals that its benefits are intended only for aliens who have been paroled as refugees

and who have been in the United States for at least two years as refugees.

(3) Where the record indicated that the applicant had not been in the United States for

two years after his parole as a refugee, the applicant was not eligible for admission as

a permanent resident under Pub. L. 95-412 and section 203(g) of the Immigration and

Nationality Act, 8 U.S.C. 1153(g), as amended.

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ON BEHALF

or PETITIONER: Melvyn E. Stein, Esquire

One North LaSalle Street

Chicago, Illinois 60602

This matter is before me on certification by the District Director

who on September 4, 1979, rejected the request for permanent resident

status under Pub. L. 95-412 which is effected in accordance with section

203(g) of the Immigration and Nationality Act, 8 U.S.C. 1153(g), as

amended. The decision will be affirmed.

The applicant is a 25-year-old unmarried native and citizen of Poland. He was first admitted to the United States on July 5, 1976, as a

nonimmigrant visitor. On September 19, 1978, he was granted political

asylum in the United States and granted the privilege of departing

from the United States voluntarily by September 19, 1979. The appli430

Interim Decision #2806

cant was issued a Refugee Travel Document on November 30, 1978.

Upon his return from Canada on. December 23, 1978, he was "paroled as

a refugee." On January 16, 1979, he submitted application Form 1-485

to request permanent resident status under section 5 of the Act of

October 5, 1978, Pub. L. 95-412.

The District Director rejected the application for several reasons.

One reason was that the applicant had not been in the United States

for two years after his parole as a refugee as required by sections

203(g) and (h). The other reasons mentioned by the District Director as

a basis for rejecting this application have no bearing on the benefit

that the applicant is seeking.

On appeal, the applicant, through counsel, maintains that section

203(g) does not specifically require that the requisite two year presence

be after the entry as a refugee. He contends that he has been in the

United States since July 1976, and should be entitled to the benefits of

Pub. L. 95-412 notwithstanding that his "parole as a refugee" was only

effected in December 1978.

I have determined that the applicant is not eligible for this benefit

because he has not been in the United States for two years since his

parole as a refugee. I reached this conclusion after careful examination

of Pub. L. 95 412 and its legislative history, section 208(g) and (h) of the

Act, and the implementing Operations Instructions at 0.I. 235.12.

Throughout, it is stated that the purpose of this legislation was to

afford paroled refugees the same treatment under the law as conditional entrants receive, especially to avail them of the provision which

allows their permanent residence, once granted, to be rolled back to

the date of their entry as refugees. In view of this, I am confident that

the benefits of section 5 of Pub. L. 95-412 are meant to apply to aliens

who have been paroled as refugees and who have been in the United

States for at least two years as refugees, notwithstanding that section

203(g) of the Act is not totally specific as to that requirement. For this

reason, the request for this benefit, which is properly an application

for admission to the United States and not an adjustment of status,

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cannot be granted at this time.

The District Director has asked me to comment on another aspect of

this case. He questions whether a citizen of an Eastern Hemisphere

country which is communist-dominated, such as Poland, who would be

able to seek permanent residence as a refugee under section 203(a)(7)

of the Act, is also permitted to avail himself of the provisions of this

new law, Pub. L. 95-412, and seek permanent residence in accordance

with sections 203(g) and (h) of the Act. The answer is affirmative.

Section 5 of Pub. L. 95 7412 is available to every alien who has been

paroled as a refugee and has been in the United States for two years

since that parole unless the alien is eligible for a "rollback", or retroac-

Interim Decision #2806

tive type of permanent resident admission or adjustment under some

other law. Therefore, the only- aliens paroled as refugees not eligible

for Pub. L. 95-412 benefit would be conditional entrants, parolees from

Cuba falling under the Act of November 2, 1966, Pub. L. 89 722, and

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refugees from Vietnam, Cambodia, or Laos falling under the Act of

October 28, 1977, Pub. L. 95-145. To view all others as eligible for Pub.

L. 95-412 consideration does not subvert the legislative intent of this

law because it was designed as a catch-all provision to operate until

October 1980, to accommodate all aliens who have been paroled as

refugees for at least two years without regard to the limitations of

seventh preference quota number availability. Along the same line of

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reasoning, it is of no consequence that if an alien, such as this applicant, were to apply for adjustment of status under section 245 of the

Act based on refugee classification provided by section 203(a)(7), he

might be found ineligible under section 245(c) as one who had worked

without Service authorization. This same alien may seek permanent

residence under Pub. L. 95-412 without regard to this period of

unauthorized employment, because the status is accorded through the

operation of section 203(g), not section 245; and because Pub. L. 95-412

states that its provisions apply to aliens who meet certain criteria,

"notwithstanding any other provision of law," It cannot be inferred

that section 5 of Pub. L. 95-412 should not be available to those aliens

just because they are also' eligible -to file under section 245, but who

have chosen not to, because they realize such application would fail. To

follow this inference and say that should be refused any Pub. L. 95-412

consideration due to previous unauthorized employment would be to

read something into section 5 of Pub. L. 95-412 and into section 203(g)

of the Act which is not there.

In conclusion, a request for benefits under Pub. L. 95-412 is properly

an application for admission to the United States and is effected by an

inspection not by an adjustment of status. I find that this applicant is

not entitled to any benefits under Pub. L. 95-412 at this time because he

has not been in the United States for two years since his parole as a

refugee.

ORDER' The alien's request for admission to the United States as

a lawful permanent resident under section 5 of Pub. L. 95-412 shall not

be entertained at this time because he is statutorily ineligible to seek

the benefit.

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