Interim Decision #1625

Interim Decision #1625

Marna OF CHArT

In Deportation Proceedings

A.-15956130

Decided by Board July fi7, 1908

Motion to reopen deportation proceedings to permit application for adjustment

of shift's tinder tbe. proviso to section 203(a) (7), Immigration and Nationality Act, as amended by P.L. 89-236, is denied since respondent, who has not

been continuously physically present in the 'United States for a period of

at least 2 years prior to his application, is statutorily ineligible for such relief, and further, since a record of permanent residence as a refugee under

section 203(a) (7) can be created only in accordance with the procedures established for section 245 of the Act, and respondent, a crewman, is statutorily ineligible for the benefits of section 245.

CEARGE:

12513—Nonimmigrant

Order: Act of 1952--Section 241(a) (2) (8

(enawman)—Ramained longer.

On November 12, 1965, the special inquiry officer granted the

respondent's application for voluntary departure, but provided for

his deportation from the United States to Hong Kong, alternatively

to the Republic of China on Formosa, on the charge contained in

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

In accordance with the foregoing decision, the date for the respondent's voluntary departure was set as December 14, 1965. Respondent,

however, failed to so depart. Accordingly, a warrant for his deportation was issued on February 2, 1966.

Thereafter, the respondent moved to reopen the deportation proceedings against him to give him an opportunity to apply for

adjustment of his status under the provisions of section 203 (a) (7)

of the Immigration and Nationality Act, as amended (8 U.S.C.

1103). Concomitantly, he requested a stay of deportation pending

a decision on said motion, which was denied by the District Director

at New York on March 18, 1966. Thereupon, action for a declaratory judgment was filed in the United States District Court for the

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Interim Decision #1625

Southern District of New York challenging the denial of the stay

of deportation by the District Director, pending adjudication of the

respondent's motion. Apparently, a delision has not yet been

rendered.

On March 28, 1966, the special inquiry officer denied the respondent's motion to reopen the proceedings, on the ground that at this

time he has no relief available to him under section 203(a) (7) of

the Immigration and Nationality Act and that, therefore, no useful

purpose would be served by reopening the proceedings. The appeal

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

consideration, will be dismissed.

The record relates to a 52-year-old male alien, married, 1 who is

a native and citizen of China. He last entered the United States

on or about August 23, 1965. He was then admitted as a nonimmigrant crewman, authorized to remain in this country for the period

of time his vessel was to remain in port, but in no event to exceed

29 days.

The foregoing establishes the respondent's deportability • on the

.charge contained in the order to show cause. This was conceded in

the course of the hearing before the special inquiry officer, and is

uncontested here. This aspect of the case, therefore, needs no further

discussion.

The special inquiry officer granted the respondent's request for

voluntary departure, which was, originally the only relief sought in

these premises. Suffice it to say, in this connection, that the record

before us supports said official's action on this respect. The only

additional comment required on the point is that the respondent

failed to take advantage of that privilege.

Upon careful consideration of the entire evidence of record,

together with the representations throughout, it is our judgment that

the special inquiry officer. has properly denied the 'respondent's

motion to reopen the proceedings to permit him to apply for adjustment of his status as a refugee within the purview of section

203(a) (7, of the IniMigration and Nationality Act, as- amended,

and thus qualify for conditional entry into the United States. Under

the proviso to that section, immigrant visas shall be available in lieu

of conditional entries to such aliens as have been continuously present in the United States for a period of at least two years prior to

application for adjustment of status. The respondent last arrived in

the United States as a crewman on August 23, 1965. Under the law,

he is ineligible to apply for adjustment of status under the proviso

1

331s alien wife and their four alien children reside in Hong Kong.

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Interim Decision *1625

to section 203 (a) (7) of the Immigration. and Nationality Act, as

amended. His application as a refugee must be made outside the

United States (8 CFR 235.9).

Under 8 CFR 245.4 adjustment of status under the proviso to

section 203(a) (7) of the Immigration and Nationality Act is governed by section 245 of that Act and the regulations promulgated

pursuant thereto. Under section 245 of the Act, as amended, such

adjustment is not available to an alien who upon arrival was serving

as a crewman. As stated, the respondent last arrived in this country

on August 23, 1965, as a crewman.

In view of the foregoing, reopening of the deportation proceedings would be a useless act. It has been judicially determined that

adjustment of status of aliens in the United States, under section

203(a) (7) of the Immigration and 'Nationality Act, must be carried

out under section 245 of that Act; and that crewmen such as this

respondent are ineligible therefor (See Tai Mui v. Esperely,

So. Dist., New York, 66 Civ. 316, 5/4/66).

While an appeal has been filed in the foregoing case, we feel that

the decision therein, involving a factual situation substantially

similar to that of the present case, provides an excellent analysis of

the pertinent statutory and regulatory provisions and is dispositive

of this appeal. For the reasons stated therein, which need no

repetition, here; reopening of these proceedings would serve no useful

purpose.

The only additional comment required in this ease is that we have

noted counsel's contention that the Service is unduly delaying action

on the-visa petition filed in the respondent's behalf. Suffice it to say

on this point that the matter thus raised is not properly for the

consideration of this Board.

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

dismissed.

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