Interim Decision #2301 

MATTER OF MOMBO 

In Deportation Proceedings 

A-12239144 

Decided by Board July 2, 197.4. 

(1) Respondent, who entered the United States in 1960 as an exchange visitor, and who 

has not been granted a waiver of the foreign residence requirement applicable to 

exchange visitors, is precluded by the provisions of section 244(0(2) of the Immigration 

and Nationality Act, as amended, from establishing statutory eligibility for suspension 

of deportation. 

(2) Respondent, an exchange visitor who participated in an educational program which 

was financed in part by the United States Government, is precluded by the provisions of 

section 212(eX0 of the Act, as amended, from establishing eligibility for adjustment of 

status under section 245 of the Act, since he has not "resided and been physically 

present in the country of his nationality or his last residence for an aggregate of at least 

two years following departure from the United States." 

(5) Neither the immigration judge nor the Board of Immigration Appeals has authority to 

grant, or to review the denial of, a waiver of the two-year foreign residence requirement of section 212(e) of the Act, as amended. [Matter of Han, 10 I. & N. Dec. 53; 

Matter of Rosenblatt, 10 1. & N. Dec. 154; and Matter of Irie, 10 I. & N. Dec. 372, 

reaffirmed.) 

CHARGE: 

Order: Act of 1952---Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Exchange visitor—

remained longer. 

ON BEHALF OF RESPONDENT: 

Austin T. Fragomen, Jr., Esquire 

Elmer Fried, Esquire 

515 Madison Avenue 

New York, New York 10022 

ON BEHALF OF SERVICE: 

Paul C. Vincent 

Appellate Trial Attorney 

In a decision dated March 16, 1973, the immigration judge found the 

respondent deportable as charged, denied his application for suspension 

of deportation, denied his application for adjustment of status, but 

granted him the privilege of departing voluntarily from the United 

States within 106 days in lieu of deportation. The respondent has appealed from that decision. The appeal will be dismissed. 
Interim Derision #2301 

The respondent is a native and citizen of Liberia who entered the 

United States in 1960 as an exchange visitor pursuant to section 

101(a)(15)(J) of the Immigration and Nationality Act. He participated in 

an educational program which was financed in part by the United States 

Government; (Tr. p. 4). The respondent has conceded deportability as a 

nonimmigrant who remained beyond the authorized length of his stay. 

The only issues on appeal involve his eligibility for suspension of deportation and adjustment of status under sections 244 and 245, respectively, of the Act. 

Section 244(f)(2) of the Act provides that the provisions relating to 

suspension of deportation shall not be applicable to an alien who was 

admitted to the United States pursuant to section 101(a)(15)(J) of the 

Act. Therefore, we agree with the immigration judge that the respondent is not eligible for suspension of deportation under section 244. 

In order to show eligibility for adjustment of status under section 245 

of the Act, an alien must establish, among other things, that he is 

eligible to receive an immigrant visa and that he is admissible to the 

United States for permanent residence. Section 212(e)(i) of the Act 

provides, in part, that a person who was admitted to the United States 

under section 101(a)(15)(J) of the Act, and who participates in a program 

financed wholly or partially by an agency of the United States Government, shall not be eligible to apply for an immigrant visa or permanent 

residence until he has resided and been physically present in the country of his nationality or last residence for an aggregate of at least two 

years following departure from the United States. The respondent has 

not met this requirement. We agree with the immigration judge that the 

respondent is not eligible for adjustment of status under section 245 of 

the Act. 

Under certain circumstances, the Attorney General may waive the 

two-year foreign residency requirement of section 212(e), thus removing that ground of ineligibility for an immigrant visa. The Attorney 

General's authority to grant such a waiver has been delegated to the 

district director. See 8 CFR 103.1(f). The respondent applied for a 

waiver under section 212(e), and in a letter dated February 10, 1969, the 

district director denied that application. The immigration judge concluded that he had no authority to review the district director's denial of 

the waiver. On appeal, counsel contends that the immigration judge 

erred in reaching that conclusion. 

We have held that neither the immigration judge nor the Board has 

authority to grant, or to review the denial of, the waiver contained in 

section 212(s) of the Act. Matter of Irie, 10 I. & N. Dec. 372 (BIA, 1963); 

Matter of Rosenblatt, 10 I. & N. Dec. 154 (BIA, 1963); Matter of Han, 

10 I. & N. Dec. 53 (BIA, 1962). Counsel has asked us to overrule our 

prior decisions. Upon consideration of the contentions advanced by 

2 
Interim Decision #2301 

counsel in his briefs and during oral arguments, we conclude that the 

position we took in Irie, Rosenblatt, and Han was correct and should be 

reaffirmed.' 

We note that the immigration judge granted the respondent more 

than three months in which to depart voluntarily from the United 

States, in order to allow sufficient time for the processing of another 

application for a waiver of the two-year foreign residence requirement. 

Since more than a year has paassed since the immigration judge's 

decision, the respondent has certainly had abundant time to pursue his 

application for a waiver. We have received no information to indicate 

that such a waiver has been obtained. 

The immigration judge's decision was correct. The appeal will be 

dismissed. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration Judge's order, the respondent is permitted to depart from the United States voluntarily 

within 106 days from the date of this order or any extensions 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. 

' Section 212(e) of the Act was amended in 1970. That amendment, however, has no 

effect on our holding that the immigration judge and the Board both lack jurisdiction over 

waiver applications under section 212(e). Jurisdiction to review a district director's denial 

of an application for a waiver under section 212(e) Is now specifically vested in the 

Regional Commissioner. 8 CFR 212.7(c); 8 CFR 103.1(e)(9). 

3