Interim Decision *1466 

MATTER OF RUBIO–VARGAS 

In Deportation Proceedings 

A-13852779 

Decided by Board May 4,1965 

In the absence of substantial equities, adjuStment of status under section 245, 

Immigration and Nationality Act, as amended, is denied, as a matter of 

discretion, to a native and citizen of Peru, who, in an effort to accelerate his 

immigration following marriage in Peru to a lawful permanent resident of 

the United States, -entered this country as a nonimmigrant visitor with the 

preconceived plan. of Joining his wife here and remaining permanently, 

thereby circumventing the normal immigrant visa-issuing process by the 

United States consul abroad. [Matter of Dias-Viffamil, Int. Dec. No IWO, 

reaffirmed.] 

Diazzon: 

Orders Act of 1952—Section 241(a) (2) (S U.S.C. 1251(a) (2)1—Visitor for 

pleasure, remained longer . 

In. a decision dated January 11, 1965, the special inquiry officer 

granted the respondent's, application for aditistment of status under 

section 245 of the ImmigretioThAnd Nationality AoL From that 

decision the trial attorney for the Immigration and Naturalization 

Service "has'appeeled. to this Board. The appeal will be sustained. 

The respondent is a 25 year old married male alien, a native and 

citizen of Peru who entered the United States at Miami, Florida, on 

March 31, 1961, at which time he was admitted as a temporary 

visitor for pleasure. He was authorized to remain in- the United 

States until June 19, 1964, and he has remained beyond that time 

without authority. His deportability is not in issue here. The 

special inquiry officer on a consideration of the respondent's application for adjustment of status under section. 245 found • him to be 

statutorily eligible for the relief. It is his opinion that the respondent merits such relief as a matter of discretion. 

The respondent entered the United States - on March 31, 1964. On 

February 28, 1964, the respondent married a permanent resident of 

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the United States and the Marriage was performed in Peru. Within 

fee; days after the marriage his wife returned to the United 

States. In the course of the proceedings it was pointed out t6 the 

respondent the apparent incongruity of his having a sincere intention to enter the United States temporarily as a visitor after his 

' recent marriage tp a legal resident of the United States who was, 

at the, time of his admission as a visitor, a permanent resident of the 

'United States. The respondent then admitted that upon his entry 

into the United States he had the intention to remain here permanently with the preconceived plan of applying for adjustment of 

status under section 245. The special inquiry officer in his opinion 

states that the record establishes that the respondent used the nonimmigrant route to the United States in order to avoid a waiting 

period necessarily encountered were he to apply to the American 

consulate for an immigrant visa. However, despite this circumstance, the spicial 'inquiry officer has considered the August 21, 1958, 

amendment of section 245 of the Immigration and Nationality Act 

. which eliminated aliens who had not entered the United States in 

good 'faith as nonimmigrants from statutory ineligibility for relief 

under section 245. The special Inquiry, officer states that this amendment is of significance and properly concludes that under the present 

amendment an alien who enters the United States not in good faith 

' and not as a bona fide nonimmigrant can be statutorily eligible for 

adjustment of his status. 'With this we 'agree. 

The decision of the special inquiry officer notes that the respondent 

could undoubtedly secure an immigrant visa from an American consulate outside the United. States and that that document would be 

issued within a short time. As to this statement we are not aware 

of the length of waitingtime the respondent would encounter were he 

to apply for a visa to an American consulate outside the United 

-States. Page 3 of the decision of the special inquiry officer states 

that the record establishes that" the respondent took this route in 

order to avoid. the necessary waiting period. This statement seems 

to be at odds with the statement on page 5 that the visa -would be 

issued within a short time. 

The special inquiry officer continues by noting the expenses involved by the respondent were it -necessary for him to secure his 

visa at the American consulate in Peru, and rhetorically asks, "What 

motive would there be to require the respondent to pay that sum to 

proceed to Peru to there obtain an immigrant visa and then with it 

to again travel to the United. States?" Apparently the special inquiry officer believes that his assumption as to the eligibility of the 

respondent for an immigrant visa coupled to the avoidance of a 

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delay encountered in Peru add up to a. conclusion that the respoild , 

agree. ent should be granted the relief. In. this we cannot 

We agree that the respondent is statutorily eligible for adjustment of status. Hon ever, as a matter of discretion we adhere to our 

position stated in Matter of Diaz-Villamil, Int. Dec. No. 1330, in 

which we recognized that the Foreign Service of. the United States 

has placed in various consulates abroad trained and knowledgeable 

personnel for the specific purpose of considering the issuance or 

denial of immigrant visas to alien applicants. This personnel is so 

situated for the convenience of persons • resident in those countries 

who desire permanent residence in the United States. The offices 

of American counsuls abroad are geared for such service, have 

facilities at their disposal for the investigations and clearances of 

visa applicants and these functions are properly established by law 

and regulations as a desirable and necessary concomitant to the. 

proper issuance of immigrant visas. We realize that. administrative 

delays are encountered in many of these offices by visa applicants. 

We maintain the proper procedures followed in such posts should 

not be circumvented by aliens abroad who desire to accelerate their 

immigration to this country. Any short-cutting of these functions 

should be avoided. 

By our decision here we do not hold that every applicant who 

avoids the visa issuing functions of consuls abroad by coming as 

a nonimmigrant will be thereafter denied relief under section 245. 

Conceivably there are instances where substantial equities may intervene and warrant favorable action as a matter of discretion. 

Such intervening equities are not present in this case, for here the 

respondent was married in Peru to a legal resident of the United 

States prior to his arrival in the United States as a visitor. His 

actions subsequent to his marriage constitute a calculated risk un 

his part which he chose to take in order to avoid administrative delay 

at the consulatein Peru. We think under these circumstances that 

despite the favorable factors considered by the special inquiry officer, 

the application should be denied as a matter of discretion. 

Although the special inquiry officer did not rule on the application 

of the respondent for voluntary departure in lieu of deportation, 

we have concluded upon a consideration of this file that that privilege 

should be granted to the respondent. Accordingly, the following 

orders will be entered. 

ORDER: It is ordered that the order of the special inquiry officer 

granting the respondent's application for adjustment of status under 

section 245 of the Immigration and Nationality Act be withdrawn. 

It is further ordered that the appeal of the trial attorney and 

the Service representative be sustained. 

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It is further ordered that the respondent be granted .voluntary 

departure in. lieu of deportation without expense to the government 

and within. such time and under such conditions as the district director shall direct. 

further ordered that if the respondent fails to depart when 

and as required, the privilege of voluntary departure shall be with 

 without further. notice .or proceedings and the following 

order. shall thereupon be immediately effective: the respondent shall 

be deported from the United States to Peru on the charge contained 

in the order to show cause. . " 

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