Reargued November 24, 1970.
Ganey, Van Dusen and Gibbons, Circuit Judges. On Reargument: Hastie, Chief Judge, and Ganey, Freedman, Seitz, Van Dusen, Aldisert, Adams, Gibbons, and Rosenn, Circuit Judges. Gibbons, Circuit Judge (dissenting). Freedman, Circuit Judge (dissenting).
The sole problem posed for disposition by this court is whether there was a proper exercise of discretion by the designees of the Attorney General, the Special Inquiry Officer and the Board of Immigration Appeals in denying adjustment of status to the petitioners under § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), (1964). Review is here sought under § 242(b) of that Act, 8 U.S.C. § 1252(b), (1964).
The narrow problem posed here results from the fact that the petitioners have conceded their deportability, but have requested that they be given the discretionary relief of adjustment of status, 8 U.S.C. § 1255(a), (1964), or voluntary departure in lieu of deportation, 8 U.S.C. § 1254(e), (1964). Additionally, the Government has conceded that petitioners have met the statute requisite for eligibility of adjustment of status, 8 U.S.C. § 1255(a), (1964). The guiding principle for the exercise of such discretion is set forth in Santos v. Immigration and Naturalization Service, 375 F.2d 262, 264 (C.A.9, 1967), wherein the court, in considering the proper exercise of discretion, stated: "An 'evaluation of all the facts' requires due consideration be given to the presence or absence of special equities. See Matter of Oritz-Prieto, B.I.A.Int.Dec. #1508, July 16, 1965; Matter of V -, 7 I. & N.Dec. 348 (1956). Indeed, such a requirement is implicit in the high burden of proof placed on the applicant by the Board. 'The extraordinary discretionary relief provided in Section 245 of the Act can only be granted in meritorious cases; the burden is always upon the alien to establish that his application for such relief merits favorable consideration.' Matter of Oriz-Prieto, supra, (emphasis added); Matter of A -, 9 I. & N.Dec. 249 (1961); Matter of G -, 9 I. & N.Dec. 38 (1960). See also 8 C.F.R. § 242.17(d)."*fn1 Cf. Fook Hong Mak v. Immigration and Naturalization Service, 435 F.2d 728 (2nd Cir., Opinion of 11/24/70).
Section 245 of the Immigration and Naturalization Act*fn2 requires the alien to fulfill two requirements, (1) the statutory requirements of inspection and admission, application, eligibility for an immigrant visa and immediate availability of the visa, and (2) he must convince the Attorney General to exercise favorable discretion in his case. Lihati Lui Unga v. Immigration and Naturalization Service, 404 F.2d 48, 49 (C.A.9, 1968); Chen v. Foley, 385 F.2d 929, 935 (C.A.6, 1967). Adjustment of status is therefore a matter of administrative grace, not mere statutory eligibility.*fn3
Based on the "unequivocal" finding that petitioners had entered the United States with the intention to seek employment and adjustment of status immediately, the Special Inquiry Officer declined to exercise his discretion to grant them adjustment of status, holding, "It may seem to some persons to be rather harsh to require these people to depart from the United States merely for the purpose of obtaining immigrant visas with which to return for permanent residence. I cannot, however, in good conscience, grant their request for adjustment of status under Section 245 * * * because the adjustment of status provided for in that section of law is an extraordinary means of giving persons lawful permanent residence status where their cases have great merit. The cases of these two respondents do not have such great merit and, in addition, I am satisfied that they have attempted to impose upon the Government of the United States by coming here as nonimmigrants with the intention of adjusting their status to that of lawful permanent resident aliens as soon after they arrived in the United States as they believed possible."
The Board of Immigration Appeals dismissed petitioners' appeals, finding that the Special Inquiry Officer had properly exercised his discretion.
The pertinent facts upon which the Special Inquiry Officer's judgment was affirmed by the Board of Immigration Appeals are as follows: Zalmai Sayyad Ameeriar came to this country from Kabul, Afghanistan, where he had been a cashier in the employ of the United Nations for a period of five years, and it may readily be assumed from the nature of his position that he was entirely familiar with English and governmental authorities. Accordingly, in 1967, he first sought and obtained a visa entitling him to come to this country as a student, and when discussing the nature of his visa with his superior, he was told it was a mistake and he should apply for a visitor's pleasure visa, which he obtained in 1968, from the Deputy Representative of the United Nations, calling for a pleasure trip as a tourist in the United States, "on a personal matter," and he forwarded this to the Consul of the United States.*fn4 He was admitted to this country as a nonimmigrant under § 101(a) (15) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (15) (B) (1964). This would show his knowledge of the limited duration of his visa. He was married to his wife for seventeen years and sired six children, three of whom he placed with his father and three with their mother. After separating from his wife, he secured a divorce from her and married his present wife. Five months after his marriage, he applied for the visa aforesaid, left Afghanistan and arrived in New York on February 10, 1968. On February 15, 1968, he located in the small village of Butztown, Pennsylvania, on the outskirts of the city of Bethlehem, hard by the sprawling plant of the Bethlehem Steel Company which stretches along the Lehigh River for some five miles, and secured a job as an accountant with a steel contracting firm, all this within five days of his arrival in New York. On February 14th, four days after his arrival here, as shown by evidence offered by the Government, he resigned his position as a cashier with the United Nations in Kabul, Afghanistan, and never renewed his application for a visitor's pleasure visa, but explained the same by saying that at the time he made application with the Labor Department for a job, he was told by a lady clerk, "You are in under a visitor's visa because now your visa is changed to other immigration visa. If you work or don't work, that is up to you." He testified this conversation persuaded him that it was unnecessary to renew his visitor's pleasure visa and he thought he was not overstaying his permitted time, which was to expire on March 15, 1968. He testified that it was his intention to come to the United States and remain here if he liked it, that he wanted to stay in this country and his wife, likewise, repeated the same statement.
At the time of his departure from Afghanistan and his arrival in New York, his present wife was five months pregnant and she testified that if they were compelled to return to Afghanistan, food conditions were not conducive to the proper rearing of her infant child and a change in climate and food would be bad for the child.
The reality of the situation must be taken into consideration as it obtains on this record in which a total stranger to a foreign land, having no relatives here at all, comes immediately on a visitor's pleasure visa to a large industrial center, secures a house in a small village thousands of miles from his home and immediately seeks employment, all within five days.
While we are in agreement that the law should lend itself to the amelioration of hardship cases and especially since previously the Government permitted individuals to arrange for what was termed "pre-examination" cases in which they went to Canada and returned to the United States and thereby acquired permanent residence status, nevertheless, adjustment of status should be granted only in meritorious cases.
Petitioners argue that amendments made to Section 245 in 1958 and 1960 demonstrate a Congressional intent to prohibit the Attorney General from denying adjustment of status where the result would be, as in this case, the return of the alien to his home country to apply for and receive an immigrant visa immediately available to him there. However, our examination of the legislative history indicates that the deletion of certain eligibility requirements from Section 245 as originally enacted was intended to increase, not decrease, the scope of the Attorney General's discretion. In the joint report accompanying the 1958 amendments, it was stated: "The purpose of the bill is (1) to revise section 245 * * * in such a manner as to broaden the discretionary authority of the Attorney General to adjust the status of certain aliens * * * in worthy cases * * *." Sen.Rep.No. 2133, H.R.Rep.No. 2258, 85th Cong., 2d Sess. (1958), 1958 U.S. Code Cong. & Admin.News, p. 3698. (Emphasis added). In 1960, the amendments broadened the class of aliens that the Attorney General could consider still further, "thereby providing considerably more flexibility in the administration of the law." Sen.Rep.No. 1651, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. & Admin.News, p. 3147.
Petitioners also argue that Congress removed from the consideration of the Attorney General whether an applicant for adjustment entered the United States with a pre-fixed intent to remain, by deleting in 1960 the eligibility requirement that an applicant be a "bona fide nonimmigrant." The 1960 Committee Report makes clear that such was not the case. "It is intended that only those aliens who enter the United States in good faith and without any intention of circumventing quota restrictions * * * shall be entitled to the benefits of section 245(a), as amended." Sen.Rep.No. 1651, supra, 1960 U.S.Code Cong. & Admin.News, p. 3147, (emphasis added)."*fn5
When we consider all the factors here involved, the totality of the circumstances under which he left Kabul, Afghanistan, the securing of a visitor's pleasure visa; his being only five days in this country and applying for a permanent job which he secured; his resignation from his job in Afghanistan as cashier for the United Nations after four days here, all point unerringly, in our judgment, to the fact that he had a preconceived intention in Kabul, Afghanistan, of bypassing normal consular procedures for obtaining permanent residence.*fn6 We see no meritorious claim advanced by counsel, nor indeed does the record disclose any, and in our opinion the record justifies a finding that there was a deception on the appellants' part of the Immigration authorities. If this Court lends its imprimatur to this conduct, as shown by this record, it would work an attrition and indeed a rapid erosion of the authority invested in the Attorney General by Section 245 to exercise his discretion in the granting or denying of petitioners' adjustment of status.
We have carefully considered the Board's decision in Matter of Arai (Interim Decision No. 2027, filed March 4, 1970) and have concluded that it is inapplicable to the facts presented by this record.*fn7 See Thomaidis v. Immigration and Naturalization Service, 431 F.2d 711, 712 (C.A.9, 1970).
The judgment of the Board of Immigration Appeals will be affirmed and adjustment of status to the petitioners denied.
The judgment of the Board of Immigration Appeals will be affirmed and adjustment of status to the petitioners denied.
GIBBONS, Circuit Judge (dissenting).
This case is before us on a petition filed pursuant to 8 U.S.C. § 1105a (1964) for review of an order of the Board of Immigration Appeals. The petitioners seek review of a decision of the Board, affirming an order of a special inquiry officer in a proceeding under § 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1964), denying to petitioners adjustment of status authorized by § 245 of that Act, 8 U.S.C. § 1255(a) (1964).
Petitioners, husband and wife, are natives of Kabul, Afghanistan. They entered the United States at New York on February 5, 1968 as temporary visitors for pleasure, authorized to remain in that status until March 15, 1968. On February 10, 1968 the husband obtained forms from the Philadelphia office of the Immigration and Naturalization Service to apply for adjustment of status. The husband-petitioner mailed the application with a transmittal letter dated February 15, 1968 to the Philadelphia office of the Immigration and Naturalization Service where it was received on February 19, 1968. With that application he furnished to the District Director a letter from the J. M. Foster Co., Inc. advising that petitioner had been referred to it by the Pennsylvania Bureau of Employment Security, and that they would like to hire him as an accountant. On March 1, 1968 the District Director in Philadelphia returned the forms to petitioner with a letter advising that he had to obtain a Labor Department Alien Employment Certificate through the Pennsylvania Bureau of Employment Security. This advice was erroneous, because, as the ...