KOTTE
(1) Where a visa petition, filed prior to the commencement of deportation proceedings, to accord the respondent third-preference status, had not been approved at the time of the deportation hearing, the Board of Immigration Appeals concluded that the immigration judge was not required to continue deportation proceedings pending аdjudication of respondent‘s visa petition by the District Director. - (2) In deciding that the respondent did not possess an approved visa petition and that, therefore, he was statutorily ineligible for аdjustment of status under section 245 of the Immigration and Nationality Act, the Board of Immigration Appeals concluded that neither it nor the immigration judge had authority to determine the respondent‘s qualificаtions for third-preference status and that jurisdiction in this matter rested solely with the District Director and Regional Commissioner.
- (3) Notwithstanding the amendment of section 245(a) of the Immigration and Nationality Act by Pub. L. 94-571, Immigration and Nationality Act Amendments of 1976 (October 20, 1976), and the amendment of
8 C.F.R. 245.2(a)(2) making adjustment of status contingent upon the availability of a visa on the date of filing rather than on the date of approval of an application, there is no absolute right to a continuance of the deportation hearing, at which adjustment is sought, to a date after the District Director has adjudicated a pending third-preference visa petition.
CHARGE:
Order: Act of 1952—Section 241(a)(9) [
ON BEHALF OF RESPONDENT: Ben H. Kim, Esquire, 120 South LaSalle Street, Chicago, Illinois 60603
ON BEHALF OF SERVICE: Gerald S. Hurwitz, Trial Attorney
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
In a decision dated April 18, 1977, the respondent was found deportable by the immigration judge under
The respondent, a native and citizen of India, entered the United
The facts of this case show that on December 30, 1976, the respondent petitioned the District Director for classification as a third-preference immigrant. An application for adjustment of status was filed on the same day. On April 5, 1977, the respondent filed a “notice of intent” with the District Direсtor, stating his desire that his application as a third-preference immigrant and his application for adjustment of status be considered simultaneously under amended regulation
At his hearing in deportation proceedings on March 8, 1977, the respondent applied for adjustment of status under
On appeal, the respondent argues that the immigration judge erred by not granting the continuance request. The respondent argues that unless the deportation proceedings are continued until the District Director adjudicates his visa petition, the amendment to
The amendment to
Before an application for adjustment of status under sеction 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be
available only upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved. If a visa petition is submitted simultaneously with the adjustment application, the adjustment applicatiоn shall be retained for processing only if approval of the petition when reached for adjudication would make a visa immediately available at the time of filing of the adjustment aрplication. If such petition is subsequently approved, the date of filing the adjustment application shall be deemed the date on which the accompanying petition was filed. (Emphasis supplied.)
The regulatory history1 reveals that this amendment and other amendments to the regulations were made necessary by the enactment into law of the Immigration and Nationality Act Amendments of 1976 (Pub. L. 94-571) on October 20, 1976. Under this law,
The status of an alien ... who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.2 (Emphasis supplied.)
The legislative history3 of this statute shows that, under the amendment to
Thе issue before us is whether or not the immigration judge is required to continue a hearing in deportation proceedings pending the adjudication of respondent‘s visa petition by a District Director in light оf the aforementioned amendments. It is probable that the amendment to
The respondent submits that thе effect of amended regulation
We find no provision of law or regulation that gives an alien an absolute right to an adjournment of a deportation hearing in order to have his application for adjustment of status disposed of. Matter of Ficalora, 11 I. & N. Dec. 592 (BIA 1966); Matter of M— , 5 I. & N. Dec. 622 (BIA 1954).
The respondent does not possess an approved visa petition for a third prefеrence. Therefore, he is statutorily ineligible for adjustment of status under
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from the United States voluntarily within 30 dаys from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge‘s order.