Interim Decision #2928 

MATTER OF TANAHAN 

In Section 245 Proceedings 

A-23273236 

Decided by Regional Commissioner November 13, 1981 

(1) Adjustment of status under section 245 of-the Immigration and Nationality Act, 

8 U.S.C. 1255, was not designed to supersede the regular consular visa-issuing processes 

or to be granted in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967), 

cert. denied, 393 U.S. 838 (1968). 

(2) The determination to grant permanent residence status under section 245 of the 

Immigration and Nationality Act, 8 U.S.C. 1255, lies entirely within the discretion of 

the Attorney General. An applicant who meets the objective prerequisites for adjustment of status is in no way entitled to that relief. Jarecha v. INS, 4174F.2d 220 (5 Cir. 

1969). 

ON BEHALF OP APPLICANT: Walter G. Yartanian, Esquire 

79 Milk Street 

Boston, Massachusetts 02109 

This matter is before the Regional Commissioner on certification from 

the Acting District Director in Boston, Massachusetts. The Acting District Director denied the instant application as a matter of discretion 

upon determining that the applicant failed to meet the "inspected and 

admitted or paroled" provision of section 245(a) of the Immigration and 

Nationality Act, 8 U.S.C. I255(a). 

Section 245(a) of the Immigration and Nationality Act piovides in 

part that: 

The status of an alien who was inspected and admitted or paroled into the United States 

may be adjusted by the Attorney General, in his discretion and under such regulations 

as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . (Emphasis .supplied). ' 

The record relates to a 40-year-old married male alien, a native and 

citizen of Iran, who last arrived -in the United States on June 5, 1979, by 

way of TWA flight number 753 from London, England. During the 

inspection process the applicant'was referred by the primary ittnnigradon inspector at the port of entry to the secondary inspection area 

because the applicant was suspected of being an intending immigiant 

not in possession of a valid unexpired immigrant visa pursuant to section 212(a)(20) of the Act. 

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During the secondary inspection, it was ascertained that the applicant 

had been residing in England with his family and had resigned from the 

Oil Service Company of Iran of 1976_ In addition, correspondence was 

discovered that indicated the applicant was actively seeking employment in the United States and had begun negotiations with an Atlanta 

employment agency. A letter was also found from the British Immigration office indicating that the applicant's request for the return of his 

passport had the effect of "cancelling the previous application for leave 

to remain" in the United Kingdom. 

Given these facts the immigration inspector refused to admit the 

applicant to the United States and the applicant chose to execute a 

formal withdrawal of his application for admission instead of being 

detained for further inquiry by an immigration judge pursuant to section 235(b) of the Act. 

Service Operations Instructions 235.1(o) sets forth the procedures 

to be followed in cases where an application for admission has been 

withdrawn and reads in part as follows: 

. In any case of an alien whose application for admission has been withdrawn or who 

has been ordered excluded and deported by a special inquiry officer and who is being 

turned over to the carrier which brought him to the United States for removal to the 

country from whence he came, the Form 1-94 which that alien presented at the time of 

his application For admission shall be endorsed with the parole stamp and with the . 

following notation thereon: (Show date to which paroled) To the (show name of carrier) 

for the purpose of removing (show name of alien) from the United States. 

The original of this form shall be given to the alien for presentation to the carrier for 

endorsement of departure data and return to the Service. At the same time, Form I-259 

shall be appropriately endorsed and served on the carrier. The port of entry will retain 

the duplicate copy of Form 1-94 only until the original with departure data is received 

and forwarded to the Central Office .. . 

The record contains a copy of Form 1-275 (Notice of Withdrawal of 

Application For Admission to the United States) which states in part: 

. I understand that my admissibility is questioned for the above reasons, which I have 

read or which have been read to me in the English language. Although I understand I 

may choose to appear before an immigration judge for a hearing in exclusion proceedings, 

I request that I be permitted to withdraw my application for admission and to return 

abroad ... 

This statement was signed by the alien on June 5, 1979, and the alien's 

signature was witnessed by a Supervisory Immigration Inspector. 

The record also contains Form 1-94 (Arrival-Departure Record) relating to the alien. Form 1-94 indicates that the alien was paroled on June 

5, 1979, for the purpose of being removed to London, England, on June 

5, 1979, via Trans World Airlines. The record further indicates that an 

officer of the Immigration Service served Trans World Airlines Form 

1-259 (Notice to Detain, Deport, Remove or Present Aliens) on June 5, 

1979, at 5 p.m. Form 1-259 was signed for by an agent of Trans World 

Airlines and reads in part as follows: 

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to the owner, agent . . . of the Trans World Airlines. Pursuant to the provisions of 

the Immigration and Nationality Act, and the Regulations issued by the Attorney 

General thereunder, you are directed to . . . Remove to London on June 5, 1979, at 7:45 

p.m. . . . lranahan, Megertlich 

The applicant, however, did not depart the United States,. but instead 

absconded from the port of entry. The next day, June 6, 1979, he 

appeared voluntarily with his attorney and was processed as an alien 

who had entered without inspection. 1On June 7, 1979, the United States 

Attorney declined prosecution under 8 U.S.C. 1325 for entry without 

inspection in favor of adininistrative proceedings. The applicant was 

then granted voluntary departure pursuant to the policy then in effect 

concerning Iranians. 

On August 16, 1979, the applicant commenced' the initial processing 

of an application for labor certification and this eventually resulted in his 

being the beneficiary of a sixth-preference visa petition approved on 

January 16, 1980. An Application for Status as Permanent Resident was 

filed on ,A.pril 4, 1980, and the question of the applicant's eligibility for 

adjustment of status is now at issue. 

Counsel's argument is succinct and simply states "parole is parole, 

whether to the airline for five hours or sixty days." In conclusion counsel states that there is no question that the applicant was paroled and 

therefore he is statutorily 'eligible for adjustment under section 245 of 

the Act. 

The evidence of record clearly establishes that the alien was paroled 

into the 'United States pursuant to Service Operations Instructions 

235.1(o). Therefore, the sole issue for our consideration is whether the 

alien's application for adjustment to that of a permanent resident under 

section 245 of the Act merits favorable exercise of the Attorney General's 

discretion. 

The Act empowers the Attorney General or his designee (normally an 

officer of the Immigration and Naturalization Service) to determine if an 

applicant is entitled to the favorable exercise of the Attorney General's 

discretion. Statutes cannot.be so detailed as to contain every regulation 

and form of procedure by which legislative policies set forth therein are 

carried out. Consequently, the courts have recognized that administrative officers must be permitted some discretion in the enforcement of 

laws. 

As a parolee, applicant for admission should not have been deemed to have made an 

entry without inspection under section 275 of the Immigration and Nationality Act, 8 

U.S.C. 1325. The Board of Immigration Appeals held in Matter of Barragan-Garibay, 15 

I&N Dec. 77 (BIA 1974), that where a paroled alien is erroneously prosecuted and convicted under section 275, the government will be collaterally estopped from denying that 

the applicant made an entry in subsequent administrative proaaaclingc cneh as exclusion. 

This matter is distinguished from -Barragan because this applicant was never convicted 

under section 275 and therefore the doctrine of collateral estoppel is not applicable. 

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Adjustment of status under section 245 of the Act was not designed to 

supersede the regular consular visa-issuing processes or to be granted 

in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967), 

cert denied, 393 U.S. 838 (1E68). An applicant who meets the objective 

prerequisites for adjustment. of status is in no way entitled to that relief. 

arecha v. INS, 417 F.2d 22C (5 Cir. 1969). In the instant case, the alien 

has no close family ties or dependents living in the United States (the 

-alien's-spouse and his two children are citizens of Iran and have resided 

in London, England since November 1978), We also find that the alien's 

actions on June 5, 1979, clearly indicated that he intended to remain in 

the United States by superseding the regular consular visa-issuing process and by asconding from Trans World Airlines he hindered the _ 

Service in its effort to enforce the legislative policies set forth by 

Congress. 

After carefully considering the entire record, together with counsel's 

representations on appeal, it is our considered opinion that the alien is 

not entitled to adjustment of status. Accordingly, the application is 

denied as a matter of discretion and the following order will be entered. 

ORDER: Application denied. 

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