Interim Decision #1514 

MATTER OF VEGA 

In Deportation Proceedings 

A-14226562 

Deoidedby Board October 18,1965 

Absent substantial equities, adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied, as a matter of discretion, to an alien from a nonquota country who prior to, and shortly after, 

his arrival in the United States secured documents needed to support his 

application for adjustment of status, since he sought and gained entry into . 

this country with a preconceived intention to establish permanent residence 

here. (Matter of Barrios, Int Dee. No. 1264, distinguished.) 

Csisaaa: . 

Order: Act of 1952--SeCtion 241(a) (2) [8 U.B.O. 1201(a) (2)3—Remained 

longer—visitor. 

An order entered by the special inquiry officer on March 18, 1965 

grants the respondent's application for a change of status to 'that of 

a permanent resident alien under the provisions of section 245 of the 

Immigration and Nationality Act (8 U.S.C. 1255). The trial attorney appeals from this decision_ Re excepts to the conclusion 

that relief under section 245 (supra) is warranted in this case. 

The respondent, a native and citizen of El Salvador, unmarried, 

41 years of age, last entered the United States through the port of 

San Ysidro, California on or about April 25, 1964. He was admitted 

as a temporary visitor and thereafter authorized to remain in the 

United States in that status until August 10, 1964. He was granted 

permission-to depart voluntarily from the United States on or before 

December 2, 1964. He has remained in the United States subsequent to December 2, 1964 and he concedes that he is deportable as 

charged hr the order to show cause. 

The only issue presented by the case is whether the respondent's application for status as a permanent resident alien under section 245 

of the Immigration and Nationality Act merits the favorable exercise of the Attorney General's discretion. The record discloses 

that the respondent applied for a nonimmigrant visa in October 

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of 1962 but his application Was denied by the consul in El Salvador. 

The respondent in April of 1961 again applied for a nonimmigrant 

visa. He presented to the consul on this occasion letters which misrepresented his employment status in El Salvador (Ex& 4 & 7). He 

°kilned a police clearance letter prior to his departure from El Salvador and submitted it with his application for an adjustment of 

status. A birth certificate, issued in El Salvador on May 5, 1964 

within 10 days after his entryoras also submitted. 

The respondent denied that he had any intention of remaining 

permanently in the United States at the tiine he secured his nonimmigrant visa_ He testified that. it was about a month after his 

arrival that he decided to apply for an adjustment of status tcrthat 

of a permanent resident alien. The trial attorney maintains that 

the record does not support the respondent's claim that he entered' 

as a bona Me nonimmigrant. 

The special inquiry officer concedes that there is no particular 

merit to the respondent's application. fer relief under ,section 245 

of the Immigration and Nationality Act. He granted relief on the 

basis of a conclusion that our decision in Matter of Barrios (Int. 

Dec. No. 1264, BIA, .Tanuary 22, 1963) put the burden of establish-

. ing that the alien does not qualify for permanent resident status 

upon the Service when the Service makes no attempt to controvert 

the testimony of the alien that he was a bona. Me nonimmigrant at 

the time, of entry. 

We do not agree with the special inquiry officer in this regatta. 

Our decision to grant relief in the Barrios case was limited to the 

facts of that partiCular case. Barrios entered the .United States 

as a nonimmigrant fully cognizant of the fact that he could not 

remain permanently unless p4rmittar1 to do so lawfully. We folind 

no intention on the part of Barrios to circtimvent the normal consular procedures far the issue of a visa to enter the United States for 

permanent residence. 

The facts of the instant ease are similar to those before 'us in 

Matter of Garda-Castillo, Int. Dec. No. 1335, BIA, April 30, 1964. 1 

Garcia-Castillo, was denied a nonimmigrant This respondent, as in 

visa upon his first application. On his second application. he 

presented a letter which misrepresented his employment status in 

El Salvador. The fact that this respondent made arrangements to 

secure documents needed to support his application for an adjustment of status prior to and shortly -after his arrival in the United 

3- The Board of Immigration Appeal'• decision denying relief under section 

245 affirmed Castillo v. Immigration. and' Naturalization Service, #19,'123, 

Q.A. 9, August *3, 1965. 

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-States establishes to our satisfaction that he sought and gained 

entry into the United States with a preconceived intention to 

establish permanent residence here. 

We said- in the Garcia-Castillo ease (supra) that the bona fides 

of an applicant for relief under section 245 in securin g nonimmigrant visa is a persuasive factor in the exercise of the Attorney 

General's discretion. We have also said that an affirmative shoWing 

that an alien secured a nonimmigrant visa in order to avoid a 

consular function doei -not bar every applicant for relief under 

section. 245 since conceivably there are instances where substantial 

equities may intervene and warrant favorable action as a matter 

of discretion. Matter of Rubio-Vargas, hit. Dec. No. 1466, BIA, 

May 4, 1965. We find no such equities in the case now before us. 

Discretionary action by its very nature permits wide latitude to 

the authority charged with its exercise. When such authority, is 

bound by hard and fast rules or criteria then its action cannot be 

said to be truly discretionary. This Board has final jurisdiction 

where there is an appeal from a denial of an application for a 

change of status filed pursuant to 8 CFR 242.17 (8 OFR 3.1 (b) (2)). 

Notwithstanding this and recognizing the fact that k.bur precedent 

decisions are binding upon the special inquiry officer, nevertheless 

we believe that the special inquiry officer must base his conelnaions 

-where a matter of discretion is concerned on. an evaluation of all 

the facts and circumstances of the particular case before him and not 

on the basis of whether his interpretation of a precedent decision 

circumscribes his individual judgment. 

We will sustain the appeal of the trial attorney; and, since on 

this record the respondent appears to be eligible for voluntary departure, we will grant him this privilege. An appropriate order 

will be entered. 

ORDER: It is ordered that the outstanding order be withdrawn 

and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his 

choice, -Within such period of time and under such conditions as the 

officer-in-charge of the District deems appropriate. 

/t is further ordered that if the alien does not depart_ from the 

United States in accordance with the foregoing, an order of deportation be entered and executed-and he be deported to El Sa.va,dor. 

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