Interim Decision #1835 

Mai.= or GARCIA-CASTELLO 

In DEPORTATION Proceedings 

A-13710425 

Decided by Board April 30,1964 

Adjustment or status under section EA Immigration and Nationality Act, as 

amended, is denied as a matter of discretion to an alien from a nonquota 

country who sought and gained entry into the United States with a preconceived intention to establish permanent residence, since the bona fides of the 

alien In securing Ids nonimmigrant VIM is a persuasive factor in considering 

the exercise of such discretion. [NOTE: See also, Matter of Garda-Castillo, 

Int. Dec. No. 1416, of which the alien in this case is also the subject.] 

Cameo: 

Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]—visitor, 

remained longer. 

In an opinion dated February 24, 1964, the special inquiry officer 

found the respondent herein deportable on the charge contained in 

the order to show cause and granted his application for status as a 

permanent resident under section 245 of the Immigration and Nationality Act. From that opinion the trial attorney has appealed to this 

Board. The appeal will besustained. 

The respondent is a native and citizen of Peru, single, who was last 

admitted to the United States on June 13, 1963, at which time he was 

authorized to remain in the United States as a visitor until July 15, 

1963. On October 2, 1963, he applied for adjustment of status to that 

of a permanent resident and that application was denied on November 

26, 1963. He was thereafter permitted to remain in the United States 

until December 26, 1963. He remained beyond that time without 

authority and is, therefore, deportable on the charge contained in the 

order to show cause. 

The special inquiry officer in his opinion found that it was the respondent's intention at the time he came to the United States to apply 

for adjustment of status from that of a visitor to that of a permanent 

resident. The record, shows that even though he knew it was illegal for 

him to work in this country, he nevertheless obtained employment about 

a week after his arrival. Moreover, his first application for a visitor's 

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Interim Decision #1335 

visa to the United States was rejected by the American consul. Thereafter he requested a travel agent in his home country to assist him and 

it is his testimony that the travel agent arranged for him to get a 

letter from a doctor to the effect that the respondent was making a trip 

to the United States in order to secure medical treatment. Upon 

presentation of this letter to the American consul, the visitor's visa 

was issued. 

The special inquiry officer in considering the application of the respondent cited our decision in the Matter of Barrios, Interim Decision 

No. 1264. He concluded from this opinion that our holding was that 

when an alien comes from a nonquota country, his bona /Cries in securing the nonimmigrant visa is immaterial to consideration of an application under section 215. Accordingly, he reasoned that the exercise 

of discretion in applications under section 245 should only be based 

on other factors in the case of the applicant. We cannot agree with the 

special inquiry officer in this regard. In Barrios we limited our decision to grant relief to the particular facts of that case. There we had 

a situation of a nonquota alien who entered the United States as a 

nonimmigrant fully cognizant of the fact that he could not remain 

permanently unless permitted to do so lawfully. We found no lack 

of good faith in his entry as a nonimmigrant, nor any intention to 

circumvent the normal procedures of entering the United States for 

permanent residence. In that case we did not agree with the Service 

that Barrios unequivocably admitted that it was his intention to come 

here permanently at the time he applied for and obtained his visitor's 

visa. These factors are not present In the instant case. Here the 

respondent upon his first application for a nonimmigrant visa obtained and presented to the American consul a false employment statement. On. his second application for a nonimmigrant visa ho presented 

a letter from a doctor stating that it was necessary for him to travel 

to the United States for medical reasons. Moreover, within one week 

after arriving in the United States the respondent took employment. 

The record shows beyond a doubt that the respondent sought and 

gained entry into the United States with a preconceived intention to 

establish-permanent residence here. The respondent freely concedes 

his deception upon the American consul. His testimony in this regard 

states that his reason for seeking this method of permanent residence 

in the United States was because he did not want to wait a long time to 

get an immigrant visa and because he has no "guarantee" or financial 

sponsorship in the United States. It is his testimony that he seized 

upon this method after finding out from several friends who had also 

entered the United. States as tourists and were able thereafter to adjust 

their status to that of permanent residents. The trial attorney in a 

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Interim Decision #1335 

brief on appeal sets forth the above factors as reasons for not exercising discretion favorably. We agree with the trial attorney's assertion that to grant the respondent the relief he seeks would tend to 

encourage deliberate evasion of consular functions. We have so held 

in the Matter of D—, Interim Decision. No. 1330, decided by WA. on 

April 3, 1964. 

The special inquiry officer considering the factors other than the 

bona fides of the respondent in his entry into the United States 'as a 

nonimmigrant, seizes -upon the factor that the respondent was completely truthful in describing the circumstances under which he gained 

admission to the United States. The special inquiry officer characterizes his candor as refreshing and concludes that he should not be 

punished for such truthfulness. 

This Board has carefully reviewed the record herein, together with 

%representations made by the trial attorney on appeal Furthermore, 

we have given thorough consideration to the brief of counsel for the 

respondent. We are not concerned herein with matters of material 

misrepresentations inasmuch as that charge has not been lodged in 

the present proceeding. Our sole consideration is directed to the 

proper exercise of discretion in a case such as this where there has 

been a flagrant disregard by the respondent of the lawful visa procedures. We concede the respondent is statutorily eligible for the relief 

he seeks. Refreshing though as his candor may be, we cannot ignore 

nor can we eondone the method he has used to seek permanent residence into this country. We do not thinkthat under these circumstances section 245 was placed into the law to avoid the properly 

authorized visa, issuing procedures of the American consuls abroad. 

Desirable as his residence in the United States might be, we deem it 

appropriate that such residence should be attained in the proper manner. We re-assert the important fact that bona fides of an applicant 

for relief under this section in his securing of a nonimmigrant visa 

for entry into the United States is a persuasive factor in the exercise 

of discretion as provided to the Attorney General for the consideration 

of the applications under section 245. In this particular case we find 

that the circumstances do not warrant a favorable exercise of that discretion. Accordingly, the following order will be entered. 

ORDER: It is ordered that the appeal of the trial attorney be sustained and that the application of the respondent for relief under 

section 245 of the Immigration and Nationality Act be denied as a 

matter of discretion. 

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