ORTIZ-PRIETO
CHARGES:
Order: Act of 1952—Section 241(a)(1) [
Act of 1952—Section 241(a)(9) [
Act of 1952—Section 241(a)(2) [
This case presents an appeal from an order entered by the special inquiry officer on May 17, 1965 denying the respondent‘s application requesting that his immigrant status be adjusted to that of a permanent resident as prоvided in section 245 of the Immigration and Nationality Act but granting him permission to depart voluntarily from the United States, in lieu of deportation, and directing that he be depоrted from the United States to Chile, the country designated by the respondent, on the charge set forth in the order to show cause in the event he fails to depart when and as required.
The respondent, a 26-year-old married male, native and citizen of Chile, has had continuous residence in the United States since his admission at Miami, Florida on or about September 19, 1964 as a
Deportation proceedings were instituted against the respondent on March 23, 1965 when the order to show cause was served upon him. A hearing in deportаtion proceedings was held at Miami, Florida on April 7, 1965 at which time the respondent through counsel admitted the truth of the several factual allegations set forth in thе order to show cause and conceded deportability on the charges stated therein. The respondent renewed his application for adjustment оf status to that of a permanent resident under section 245 of the Immigration and Nationality Act (p. 3). The respondent testified his wife and three children are natives, citizеns and residents of Chile (p. 4). Counsel during the deportation hearing advised the special inquiry officer that he had mistakenly admitted the truth of allegations 6 and 7 in the order tо show cause. Counsel and the respondent admitted the truth of the remaining allegations in the order to show cause and conceded that the respondent is subjеct to deportation under the provisions of section 241(a)(2) of the Immigration and Nationality Act. The evidence of record clearly establishes that the respondent is subject to deportation under the provisions of section 241(a)(2) of the Immigration and Nationality Act, in that, he has remained in the United States for a longer time than authorized.
The sole issue for our consideration is whether the respondent‘s application for adjustment to that of a permanent resident under sеction 245 of the Immigration and Nationality Act merits favorable exercise of the Attorney General‘s discretion. This Board has con
After an exhaustive study of this record, it is our considered opinion that the respondent‘s explanation of what he mеant when he stated “tourist to stay” in answering Question 7 on his 245 application is credible and reasonable. In this connection, the respondent testified that his apрlication was filled out by a 12-year-old boy who understood the English language. The respondent testified that the answers to the questions set forth in his application for аdjustment of status to that of a permanent resident were furnished by him (Form I-485, Ex. 3). We find nothing in this record that in any manner indicates that the respondent intended to circumvent the normаl immigration visa-issuing process when he applied for and obtained his nonimmigrant visa at the office of the United States Consul in Santiago, Chile. Counsel on appeаl urged that the respondent‘s immigrant status be adjusted to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act inasmuch as he is eligiblе therefor and is a person of good moral character. It appears that the respondent is eligible to receive an immigrant visa and is admissible to thе United States for permanent residence. Likewise, it appears that an immigrant visa will be immediately available to the respondent if his application fоr adjustment of status is approved. However, the applicable statute does not contemplate that all aliens who meet the required legal standards will be granted adjustment of status to that of a permanent resident. Since the grant of an application for adjustment of status is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised by the Attorney General even though statutory prerequisites have been met. Moreover, the
After carefully considering the entire record, together with counsel‘s representations on appeal, thе decision of the special inquiry officer will be affirmed. The grant of the discretion provided in Section 245, supra, must be reviewed against all the evidence present in this record and, when so viewed, we do not think that the special inquiry officer‘s denial of the respondent‘s application for adjustment of status to that of a pеrmanent resident was unreasonable or unjustified. It is our considered opinion that this case does not meet or measure up to the standards required for an approval of an application for adjustment of status to that of a permanent resident as provided in section 245, supra. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be dismissed.