PETITION FOR REVIEW OF ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before: BIGGS, VAN DUSEN and ALDISERT, Circuit Judges.
The narrow issue presented in this alien's petition for review of an order of the Board of Immigration Appeals is whether Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255 (a),*fn1 requires the Attorney General to make an eligibility determination before he can exercise his discretion. The Board held that the immigration judge could pretermit the eligibility issue and could deny the application for status adjustment as an exercise of discretion. We set aside the Board's order and remand for further proceedings.
Petitioner, a native and citizen of the Philippines, entered the United States at Honolulu, Hawaii, on July 12, 1968, as a nonimmigrant visitor for pleasure. Having overstayed her visit, she applied, pursuant to § 245, for an adjustment of her status to that of a permanent resident. On February 21, 1973, the Philadelphia District Director denied her application in the exercise of discretion and granted her 30 days to effect her voluntary departure from the United States. Because petitioner remained in the United States beyond the 30-day period, she was ordered to show cause why she should not be deported. At the April 19, 1973, deportation hearing, petitioner renewed her § 245 application, conceded deportability, and admitted she misrepresented her occupation at the time she applied for her visa. She listed her occupation as a merchant; she was a teacher. She also represented that she had not earned a college degree when, in fact, she had received a B.S. in Medical Technology in 1966.
In her written decision, the immigration judge denied petitioner's renewed application, reasoning that petitioner's "material, deliberate misrepresentations" did not merit a favorable exercise of administrative discretion. It is conceded that the Immigration Service made no determination of petitioner's eligibility for relief prior to denying her application as a matter of discretion.
Petitioner does not seek judicial review of the Attorney General's exercise of discretion. Rather, she urges that, irrespective of a denial of status adjustment based on an exercise of discretion, an eligibility determination is extremely important to her as well as being statutorily mandated.
She asserts that the importance of an eligibility determination will surface when she applies for an immigrant visa after departing from the United States pursuant to the Board's order: "Respondent's finding of fraud... might very well indicate to a consular officer abroad, reviewing the Petitioner's application for an immigrant visa in the future, that the Petitioner is excludable from admission...." Petitioner's Brief at 12.
An overview of the duties of consular officers and an explanation of the transfer of their duties to the Attorney General under § 245 place petitioner's apprehension in perspective. Therefore, we now turn our attention in that direction.
If an alien seeks admission into the United States he, like petitioner, completes a visa application. The consular officer then has an affirmative duty to determine the alien's eligibility for a visa. 8 U.S.C. § 1201(g). Congress has provided that certain classes of aliens are statutorily ingligible to receive visas:
(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.... 8 U.S.C. § 1182. Thus, if the consular officer were to determine that the alien fell within this classification, no visa would issue.
We were told by government counsel at oral argument that, unlike final deportation orders of the INS, 8 U.S.C. § 1105a, eligibility determinations of consular officers are not subject to judicial review. Indeed, government counsel suggested that an administrative appeal from the consular officer's determination does not lie to the Secretary of State.*fn2 ...