Case Information
*1
Matter of Arai
In Deportation Proceedings
A-18483322
Decided by Board March 4, 1970
Abstract
Whеre adverse factors are present in a given application for adjustment of status under seсtion 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offsеt these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hаrdship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustmеnt will ordinarily be granted, still as a matter of discretion. [Matter of OrtizPrieto, 11 I. &; N. Dec. 317, superseded.]
Charge:
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Visitor, remained longer.
On Behalf of Respondent: Donald L. Ungar, Esquire 517 Washington Street San Francisco, California 94111 (Brief submitted)
On Behalf of Service: R. A. Vielhaber
Appellate Trial Attorney
In our decision of February 6, 1970, we sustained the respondent's appeal, withdrew the order of the sрecial inquiry officer, and granted respondent adjustment of status under section 245 of the Immigration and Natiоnality Act. At that time we stated that an opinion in greater detail would be forthcoming in the near future. In sustaining the respondent's appeal we have, in effect, exercised discretionary power contrary to the manner in which the special inquiry officer exercised it. In so doing, we did not conclude that thе special inquiry officer was either arbitrary or capricious in his action or that he abused his discretion in any manner.
The special inquiry officer after finding the respondent to be eligible for the relief, nеvertheless, concluded that such should not se granted as a matter of discretion. He based his denial оn the riteria set forth in Matter of Ortiz-Prieto, 11 I. &; N. Dec. 317
*2 (BIA, 1965). We there stated that the extraordinary relief described in section 245 can only be granted in meritorious cases. Having found no outstanding equities in that case, we disminood the appeal from the special inquiry officer's denial of the relief as a matter of discretiоn.
We are now of the opinion that the language set forth in Matter of Ortiz-Prieto, supra, should be clarified and modified because it is too broad in its impact and probably more demanding than necessary. Accordingly, the language of the instant decision will supersede that contained in Ortiz-Prieto.
The respondеnt is now over 27 years of age. He is single and was admitted to the United States on March 25, 1968, as a visitor for a рeriod of time to expire on April 26, 1968. On April 25, 1968, he filed an application for staus as a temporary worker or trainee. That application was denied on October 4, 1968, and he was thereafter grаnted voluntary departure to expire on November 28, 1968. He remained beyond that date and is concededly deportable on the charge contained in the order to show cause.
The special inquiry officer in considering the respondent's application for adjustment of status under section 245 was aware that the respondent is a specialty cook in Japanese cuisine and had beеn accorded a labor certification for such employment. No finding was made by the special inquiry officer that the respondent was other than a bona fide visitor when he first arrived in the United States. Apparently the special inquiry officer considered the respondent's taking of employment beforе his trainee status had been acted upon as an adverse factor. He then found that the respоndent's case presented no unusual equities and based his denial of the application on the ruling contained in Ortiz-Prieto.
Section 245 of the Immigration and Nationality Act reposes with the Attorney General and his delegates the discretionary power to grant adjustment of status. Therefore it follows that mere еligibility for that privilege will not automatically result in a grant of the application.
The record in the instаnt case presents no adverse factors affecting respondent's application. He is а young man, in good health and of good moral character. His employment is such that a labor certification has been issued. The employment could be of potential benefit to this country. The resрondent has no dependents.
It is difficult and probably inadvisable to set up restrictive guide lines for the exercise of discretion. Problems which may arise in applications for adjustment must of necessity be resоlved
*3 Intrim Decision #2027 on an individual basis. Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United Statеs, etc., will be considered as countervailing factors meriting favorable exercise of administrativе discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of disсretion.
Our decision to sustain the respondent's appeal was based upon the foregoing considerations. We do not deem it necessary for the respondent to establish, in light of the circumstances surrounding his case, any outstanding equities.