Interim Decision #3205 

MATTER OF HIn Adjustment of Status Proceedings 

Decided by the Associate Commissioner, 

Examinations, June 11, 1993 

(1) An applicant for temporary resident status under section 245A of the Immigration 

and Nationality Act, 8 U.S.C. § 1255a (1988), has the burden to establish eligibility 

for the benefit sought by a preponderance of the evidence. B C.F.R. § 245a.2(d)(5) 

(1993). The sufficiency of all evidence produced by the applicant will be judged 

according to its probative value and credibility. 8 C.F.R. § 245a.2(d)(6) (1993). 

(2) Prior to 1982, section 265 of the Act, 8 U.S.C. § 1305 (1976), required any alien in 

the United States in a lawful temporary status to notify the Attorney General in 

writing of his address annually and at the expiration of each 3-month period, 

regardless of whether the address had changed. 

(3) An alien who failed to comply with the reporting requirements under section 265 was 

amenable to deportation proceedings, unless he was able to establish that the failure 

was reasonably excusable or not willful. Section 266(b) of the Act, 8 U.S.C. § 1306(b) 

(1976). 

(4) An applicant for temporary resident status pursuant to section 245A of the Act has 

established a credible claim to willfully violating the reporting requirements under 

section 265 of the Act when he has consistently advanced this claim not only on his 

initial Application for Status as a Temporary Resident (Form 1-687), but also in an 

affidavit submitted to the Immigration and Naturalization Service, and at his 

adjustment of status interview. 

(5) A nonimmigrant student who willfully failed to comply with the reporting 

requirements of section 265 of the Act is deemed to have violated his status and 

thereby to be in an unlawful status for purposes of adjustment under section 245A of 

the Act. 

(6) The absence of mandatory annual and quarterly registration reports from Government files in violation of section 265 of the Act does not warrant a finding that the 

applicant's unlawful status was "known to the Government" as of January I, 1982. 

ON BEHALF OF APPLICANT: Jenny C.Y. Ling, Esquire 

Lee, Lee & Ling 

8 Chatham Square, Suite 500 

New York, New York 10036 

This matter is an application for temporary resident status denied 

by the director, Eastern Regional Processing Facility, and now on 

appeal before the Legalization Appeals Unit. The appeal will be 

dismissed. 

The applicant is a 52-year-old native and citizen of the People's 

Republic of China who made an application for temporary resident 

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status on May 4, 1988. The Application for Status as a Temporary 

Resident (Form 1-687) indicates that the applicant violated his 

nonimmigrant status by failing to comply with section 265 of the 

Immigration and Nationality Act, 8 U.S.C. § 1305 (1976). 

An applicant for temporary resident status must establish entry into 

the United States before January I, 1982, and continuous residence in 

the United States in an unlawful status since such date and through the 

date the application is filed. In the case of an alien who entered the 

United States as a nonimmigrant before January 1, 1982, the applicant 

must establish that the period of authorized stay as a nonimmigrant 

expired before such date through the passage of time or that the alien's 

unlawful status was "known to the Government" as of such date. 

Section 245A(a)(2)(B) of the Act, 8 U.S.C. § 1255a(a)(2)(B) (1988). 

An applicant for temporary resident status under section 245A of 

the Act has the burden to establish eligibility for the benefit sought by 

a preponderance of the evidence. 8 C.F.R. § 245a.2(d)(5) (1993). The 

sufficiency of all evidence produced by the applicant will be judged 

according to its probative value and credibility. 8 C.F.R. 

§ 245a.2(d)(6) (1993). 

Prior to 1982, section 265 of the Act required any alien in the 

United States in a lawful temporary status to notify the Attorney 

General in writing of his address annually and at the expiration of each 

3-month period, regardless of whether the address had changed. An 

alien who failed to comply with this requirement was amenable to 

deportation proceedings, unless he was able to establish that the failure 

was reasonably excusable or not willful. Section 266(b) of the Act, 8 

U.S.C. § 1306(b) (1976). 

The director determined that the applicant entered the United 

States on July 23, 1980, as a nonimmigrant student ("F-1") with a stay 

authorized for the duration of his student status. The director found 

that the applicant had provided no evidence to establish that his 

authorized stay expired prior to January I, 1982, or that he was in an 

unlawful status which was "known to the Government" as of that date. 

On appeal, counsel asserts that the applicant violated his nonimmigrant status by failing to comply with section 265 of the Act. Counsel 

further claims that this violation of status was "known to the 

Government" as of January I, 1982. 

The record reflects that the applicant first entered the United States 

as a nonimmigrant student ("F-1") at Anchorage, Alaska, on July 23, 

1980. He was authorized to remain for the duration of his student 

status. The applicant attended the University of Detroit, Detroit, 

Michigan, from 1980 through 1982. In the spring of 1982, he began 

studying at Fiorello H. LaGuardia Community College of the City 

University of New York, Long Island, New York. 

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The applicant's authorized stay, therefore, did not expire prior to 

January 1, 1982. As a result, in order to be eligible for the benefit 

sought, the applicant must establish that he was in an unlawful status 

before January 1, 1982, and further, that his unlawful status was 

"known to the Government" as of January 1, 1982. 

The first issue in this matter is whether the applicant was in an 

unlawful status prior to January 1, 1982. The applicant filed Form I687 on May 4, 1988. At item 29 of that form, the applicant indicated 

that he had violated his student status by failing to comply with 

section 265 of the Act. Further, the Legalization Examiner's Worksheet (Form 1-696) contained in the record documents the discussion 

at the adjustment of status interview concerning the applicant's 

knowledge of the address reporting requirement and his willful failure 

to comply. In pertinent part, an affidavit dated October 13, 1988, and 

submitted by the applicant similarly states, "I was aware of the fact 

that I was required to file the alien registration forms with the 

Immigration and Naturalization Service, but willfully failed to do so." 

From the time of the applicant's initial entry, notes counsel, until 

December 29, 1981, with enactment of the Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1617, the 

applicant was statutorily required to file at least seven address reports 

with the Attorney General. Despite the fact that the applicant clearly 

had knowledge of the reporting requirements of section 265 of the Act, 

asserts counsel, he willfully and consistently failed to file. As statutorily mandated, the applicant was amenable to deportation proceedings 

for his failure to file. Counsel argues it would be duplicitous and unjust 

to determine, on one hand, that the applicant was deportable and his 

status unlawful for purposes of section 265 and yet, on the other hand, 

to determine that his status was not unlawful for purposes of section 

245A of the Act. 

Counsel's argument is persuasive. The applicant's claim of willfully 

violating the mandatory obligation to file address reports, which has 

been advanced since the initial application, is unreservedly credible. 

The applicant's Form 1-687 lists the violation of section 265 of the Act 

as the only ground of eligibility for the benefit sought. Moreover, this 

claim was buttressed by an affidavit and discussed with the legalization officer at the time of the applicant's interview. 

A credibility determination includes an examination of an applicant's pattern of compliance and selective noncompliance with all 

Service regulations prior to January 1, 1982. An applicant's credibility 

may be diminished when he asserts a claim of willful noncompliance 

with section 265 of the Act, but has complied with all other required 

regulations prior to January 1, 1982, and throughout his stay in the 

United States. 

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It follows that the applicant's credible claim of willfully violating 

section 265 of the Act constitutes a violation of his nonimmigrant 

status. He has, therefore, established that he was in an unlawful status 

for purposes of adjustment under section 245A of the Act. 

The only issue remaining is whether this violation of status was 

"known to the Government" as of January 1, 1982. In Matter of P-, 19 

I&N Dec. 823, 825 (Comm. 1988), the Commissioner held that an 

alien who claims his unlawful status was "known to the Government" 

as of January 1, 1982, must establish that prior to January 1, 1982, 

documents existed in one or more Government agencies so, when such 

documentation is taken as a whole, it warrants a finding that the 

alien's status in the United States was unlawful. In the matter at hand, 

counsel claims that the applicant's failure to comply with section 265 

of the Act was "known to the Government." This claim is based on the 

absence of annual and quarterly address reports from Government 

files. 

Counsel's position on the issue is not persuasive. It is not reasonable 

to impute knowledge to the Government based on the absence of a 

document. Such an absence would not necessarily alert the Government that the alien was in an unlawful status, as it could also imply 

that the alien had left the United States nr inadvertently failed to file 

the registration reports. Therefore, the absence of mandatory annual 

and quarterly registration reports from Government files does not 

warrant a finding that the applicant's unlawful status was "known to 

the Government" as of January 1, 1982. 

On appeal, the applicant has established by a preponderance of the 

evidence that he was in an unlawful status prior to January 1, 1982. He 

has failed, however, to establish that this unlawful status was "known 

to the Government" as of January 1, 1982. 

An alien applying for adjustment of status has the burden of proving 

by a preponderance of the evidence that he has resided in the United 

States for the requisite periods, is admissible to the United States 

under the provisions of section 245A of the Act, and is otherwise 

eligible for adjustment of status. 8 C.F.R. § 245a.2(d)(5) (1993). The 

applicant has not met this burden. 

ORDER: The appeal is dismissed. 

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