Interim Decision #1267

Interim Decision #1267

Mowrit or romactrox

In DEPORTATION Proceedings

A-12302174

Deckled by Board February 19, 1963

(1) An alien's application for adjustment of status under section 245 of the

Immigration and .Nationality Act, as amended, filed simultaneously with a

petition for third-preference status at a time when the quota was open, but

on 'which final nation by the district director was completed after the quota

had closed, may not be approved nano pro limo by the special inquiry officer

in de nova consideration of application in deportation proceedings since as

of the date of consideration an immigrant visa was not immediately available

to the alien as required by subsection (a) (3) of section 245.

(2) The setting of the terms and conditions for voluntary departure is not

within the jurisdiction of the Board of Immigration Appeals (8 OEM 244.2).

(See also, Matter of Die, Int. Dee. No. 1304.)

CriAltOE:

Order: Act of 1952—Section 241(a) (2) [8 11.S.C. 1251]—Nonimmigrant (temporary visitor for pleasure)—remained longer.

In a decision dated December 10, 1962, the special inquiry officer

denied the respondent's request for adjustment of his status, ante;

granted his application for voluntary departure; and provided for

his deportation on the above-stated charge in the event of his failure

to so depart. The appeal from that decision, which brings the case

before this Board for consideration, will be dismissed.

The record relates to a 21-year-old single male alien, a native and

citizen of Italy. He last entered the United States on or about October 5, 1961. He was then admitted as a temporary visitor for pleasure

for a period which, with extensions, was to run until July 5, 1962. He

has remained in the United States since the expiration of the temporary period of his admission without authority. Accordingly, his

deportability on the above-stated charge . is established.

On April 19, 1962, the respondent submitted an application for

adjustment of his status under section 245 of the Immigration and

Nationality Act, with accompanying documents. At the same time,

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a petition to have him accorded third preference status under the

Italian quota, filed in his behalf by his legally resident alien father,

was also submitted. Both the application and the petition were received by the Service on the following day, April 20, 1962.

On June 20, 1962, the respondent was accorded a hearing and examination in connection with his application for adjustment of status.

On the following day, June 21, 1962, he was notified that his father's

petition in his behalf had been approved. On August 20, 1962, the

District Director denied his application for adjustment of status

under section 245 of the Immigration and Nationality Act, on the

ground that the third preference portion of the Italian quota was

then oversubscribed.

On November 26, 1962, deportation 'proceedings were instituted

against the respondent by the issuance and service upon him of an

order to show cause charging him with deportability on the abovestated ground. In the course of the hearing conducted thereunder,

held on December 10, 1962, the respondent renewed his request for

adjustment of status under section 245 of the Immigration and Nationality Act. It was denied by the special inquiry officer, for the same

reason it was previously denied by the District Director.

The basis of the special inquiry officer's denial, as well as that of

the District Director previously, was a Department of State Visa

Office Bulletin in effect at the time of the decisions showing the third

preference portion of the Italian quota to be oversubscribed for a

period of approximately 10 years. The respondent concedes that this

was the case.

However, he points to Department of State Visa Office Bulletin

#93, dated April 2, 1962, showing that as of the date of its issuance

the third preference portion of the Italian quota was current. He

stresses that this situation continued until Visa Office Bulletin *93

(supra) was cancelled by the issuance of Department of State Visa

Office Bulletin #96, dated June 4, 1962. The latter shows that as of

July 1, 1962, the third preference portion of the Italian quota was

unavailable to applicants or petitioners who had filed for such status

subsequent to December 1,1953?

He argues that, on the basis of the foregoing, his application could

have been granted at any time prior to July 1, 1962, because a visa

was then available to him He contends that his petition and application should have been processed within that period of time, and that

failure in the administrative process in this respect was unduly prejuDepartment of State Visa Office Bulletin #101 of January 2, 1963, now sets

this date as March 1, 1955.

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died to him. He requests that we approve his application, mow

pro twit& This, however, we cannot do.

Section 245 (a) (3) of the Immigration and Nationality Act provides that an alien's application for adjustment of status to that of one

lawfully admitted for permanent residence cannot be granted unless

"an immigrant visa is immediately available to him at the time his

application is approved." The foregoing, however, establishes that

we are confronted with precisely such a situation here. Under the

law, therefore, the special inquiry officer had no alternative but to

deny the application. The law is equally binding on this Board. It

makes no provision for retroactive approval of the application.

Respondent's assertion that his visa petition and application for

adjustment of status should have been processed between April 20,

and July 1, 1962, overlooks the normal administrative steps required

in the processing of said petition and application. The dates set forth

'above do not indicate any abnormal delay in. this respect, and the

respondent points to none.

His argument also overlooks the fact that since the provisions of

sections 201(e) and 203(a) of the Immigration and Nationality Act

(8 U.S.C. 1151 and 1158) apply under all quotas, the indication that a

quota or a preference thereunder is current may not be construed to

signify that such numbers are available for use at all times during the

period for which requested or specified as being covered by the Department of State Visa Office Bulletin in question. Moreover, it overlooks

the.fact that while the respondent's petition and application were still

subject to administrative adjudication, he had no established right to

the future status he was seeking to obtain; and that the statute makes

the granting of such application a matter wholly within the discretion

of the Attorney General, acting through his duly designated represen.tatives.° It further overlooks the fact that the law makes the Department of State responsible for the determination that the third preference portion of the Italian quota is or is not oversubscribed. Such

a determination is binding on all the parties here involved, and this

administrative tribunal is not the proper forum for review thereof.

8 CFR 245.2 does not, as claimed by respondent, authorize the special

inquiry officer to review a District Director's denial of adjustment

under the statute. Rather, it specifically precludes appeal from the

District Director's denial and provides for de novo consideration by

the special inquiry officer. 8 CFR 242.17 makes this abundantly clear.

The only other aspect of the case requiring comment is respondent's

alternative request for voluntary departure. The special inquiry officer has, on the record before us, properly found respondent eligible

2

Fassilis v. Esperdv, 301 F. 2d 429.

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for such relief and granted it. There is no merit in respondent's request that we return his case to the special inquiry officer or the District Director with instructions to grant voluntary departure with an

indefinite time for departing, on the basis of the equitable and humanitarian factors in the case previously pointed up. Under the regulations (8 CFR 211.2), the setting of the terms and conditions for voluntary departure is not properly a function of this Board.

ORDER : It is ordered that the appeal be and the same is hereby

dismissed.

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