WONG
The case comes forward on motion of counsel dated March 29, 1967 requesting that the “deportation” proceeding1 be reopened to allow the respondent to apply for the privilege of adjustment of status under section 245 of the Immigration and Nationality Act, as amended. The new facts set forth are that since the entry of the final order herein, a relative visa petition has been approved granting the respondent immediate relative status (201(b)); that the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence and an immigrant visa is immediately available to him at the time his application will be approved; and that he has become, in all respects, eligible for adjustment of status under section 245 of the Immigration and Nationality Act, as amended.
This case was previously before us on September 30, 1952 on appeal from an order entered by the Acting Assistant Commissioner on May 28, 1952, affirming the appellant‘s exclusion from the United States by a Board of Special Inquiry on the above-stated grounds. Briefly, the record relates to a native and citizen of China, born February 3,
The trial attorney has filed a brief in opposition to the motion to reopen, asserting that under section 245 of the Immigration and Nationality Act, the appellant is ineligible for such relief, inasmuch as he has not been inspected and admitted but excluded from the United States on his false claim to citizenship in 1952; thus, he is ineligible for section 245 relief. The alien‘s counsel has filed a brief claiming that the alien has been paroled into the United States and is therefore eligible under section 245 of the Immigration and Nationality Act; and that a hearing should be held before a special inquiry officer.
We believe the matter is covered by regulation,
An application for adjustment of status under section 245 of the Act * * * by an alien after he has been served with an order to show cause or a warrant of arrest shall be made and considered only in proceedings under Part 242 of this chapter. In any other case, an alien who believes that he meets the eligibility requirements of section 245 of the Act * * * and section 245.1 shall apply to the district director having jurisdiction over his place of residence.
In the present case, an order to show cause or a warrant of arrest has never been issued. Therefore, the consideration of eligibility under section 245 of the Immigration and Nationality Act lies within the jurisdiction of the District Director as provided by the above regulation. The motion will be denied without prejudice to renewal before the District Director.
ORDER: It is ordered that the motion to reopen be denied.