Interim Decision 40836 

MATTER OF VAN18I 

In Deportation Proceedings 

A-14683916 

Decided by Board February 7, 1968 

Since the motion to reconsider compiles with the provisions at 8 OF11 242.22 

and 8 CM 248.8 requiring, among other things, that the new evidence is 

material and could not have been discovered or presented at the hearing, Service motion is granted to reconsider the order under section 245, Immigration 

and Nationality Act, as amended, adjusting respondent's statue conditioned 

upon the obtainment of a quota number from the Department of State, where 

the assignment of a quota number, although available, was never finalized, 

issuance to respondent of Form 1-151 appears attributable to clerical error, 

and at the time of filing of the motion no record or permanent residence bad 

as yet been created. 

CHAnoss: 

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Remained 

longer, visitor. 

ON Mums,OF R2SPOPDICRT: 

Donald D. Ungar, =Quire 

517 Washington Street 

San Francisco, Calif. 94111 

(Brief filed) 

OR BEHALF or Szavzon: 

B. A. Vieihaber 

Appellate Trial Attorney 

Stephen M. Suflin 

Trial Attorney 

(Brier niee) 

The case comes forward upon certification by the special inquiry 

officer of his order dated September 18, 1967 denying the Service motion to reopen the proceedings. 

The respondent, a native and citizen of Tonga, 25 years old, female,. 

was admitted to the United States at Honolulu, Hawaii on or about 

January 25, 1965 as a visitor. The respondent was accorded a hearing 

before a special inquiry oficer on July 18, 1967, was found deportable f

on the charge stated in the order to show cause. During the course of 

the hearing she applied for status as a permanent resident under section 

245 of the Immigration and Nationality Act. In her sworn application 

for such 'status on Jun' e 15; 1965, the respondent stated she was not 

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Interim Decision #1886 

married. The special inquiry officer on July 18, 1967 granted the application for permanent resident status conditioned upon the Service 

obtaining from the Department of State a quota number under the 

Tongan quota. No appeal was taken from this decision. 

On August 10, 1967 the trial attorney for the Service filed a motion 

to reopen the proceedings to offer evidence which was material to the 

question of whether the respondent's application merited the favorable exercise of discretion. Attached to the motion was State Department Form FS-508 (Report to the Immigration and Naturalization 

Service Concerning an. Individual Alien), dated October 6, 1966 

from the American Consulate at Suva, Fiji Islands, which indicated 

that Slone Moala had married the respondent on January 9, 1965 and 

feared that she was mailing application as a single person; the plans 

were for the respondent to go first, her husband would join her later 

as a visitor, and once in. the United States thay intended to remain 

permanently_ The Consulate's communication further indicated that 

the Consulate had informally refused a visitor's visa to the respondent 

for failure to overcome presumption of immigrant status; she was 

instructed to appear in person if she wished to pursue her application • 

the result of which would have been a formal refusal. However the 

respondent did not follow up her application with the Consulate, instead went to Pago Pago, American Samoa and obtained her visitor's 

visa from that office. The Consulate indicated that many Tongans 

obtained'nonimmigrant visas from Pago Pago before the Consulate 

was able to take preventative measures. The Form FS-508 was received 

in the San Francisco District Office on October 10, 1966 but because 

of a backlog of work it was not until July 1967 that the Form FS-508 

was indexed and routed to the administrative file relating to the 

respondent. 

Counsel for the respondent argues that a grant of permanent resident status, once filed, cannot be attacked except in accordance with 

the statute enacted for that purpose : to wit, section 246 ; and, in addition, the motion of the Service does not comply with the regulations 

relating to the reopening of deportation proceedings since it did not 

appear the evidence sought to be offered was not available and could 

not have been discovered or presented at the hearing (8 CFR 242.22). 

In reply, the trial attorney also relied upon 8 CFR 242.22 that there 

was no obstacle to reopening the proceedings. 

In his decision on the motion, the special inquiry officer pointed nut 

that had the evidence which the Service discovered been presented 

to him at the hearing, it might wellhave caused him to deny respondent's application for permanent resident status; that in light of the 

District Director's explanation for the failure to have presented the 

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Interim Decision *1836 

evidence, "it was not available and could not have been discovered 

or presented at the hearing" within the meaning of the regulations. 

However, the special inquiry officer distinguishes the case of Matter 

of Ta&nos, Int. Dec. No. 1770 (August 11, 1967), on the ground that 

while the Board of Immigration Appeals may have the power, after 

it enters a decision adjusting the alien to that of a permanent resident, 

to order the execution of its decision held in abeyance and thereafter 

to reverse itself, there was no regulation giving a special inquiry 

officer such authority, and he therefore found that he had no authority 

to reopen the instant proceedings. He denied the motion to reopen but 

because of the doubt engendered by the action in Talanoa, certified 

the case to this Board. 

When the motion to reopen was filed on August 10, 1967, it set forth 

that a quota number was issued for use of the alien during August 

1967. At oral argument it was pointed out by the appellate trial attorney that due to a combination of clerical errors the respondent 

received through the mail her Form 1-151, Alien Registration Receipt 

Card, in the latter part of August 1967 but that at the time of filing 

of the motion no record had as yet been created for permanent 

residence. 

The present proceeding is a deportation proceeding conducted under 

the authority of section 242 (b) of the Immigration and Nationality 

Act. 8 CFR 242.17 relates to ancillary matters—(a) creation of the 

status of an alien lawfully admitted for permanent residence pursuant 

to sections 244(a), 245 and 249 of the Act, (b) voluntary departure, 

(c) temporary withholding of deportation. 8 CFR 242.22 provides 

for reopening or reconsideration and states that a motion to reopen 

will not be granted unless the special inquiry officer is satisfied that 

the evidence to be offered is material and was not available and could 

not have been discovered or presented at the hearing. The, special 

inquiry officer has stated he is satisfied that the evidence to be offered 

was material and was not available and could not have been discovered 

or presented at the hearing. 

Section 246 of the Immigration and Nationality Act and 8 CFR 

246 provides for recission of adjustment of status. 8 CFR 246.8 provides that the special inquiry officer may upon his own motion, upon 

motion of the trial• attorney or the respondent, reopen or reconsider 

any case in which he has made a decision, unless jurisdiction in the 

case is vested in the'lloard of Immigration Appeals. A motion to 

reopen will not be granted by the special inquiry officer unlifts he is 

satisfied that evidence sought to be offered is material and was not 

available and could not have been discovered or presented at the 

hearing. 

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Interim Decision ,4*1836, 

Both regulations, 8 CFR 242.22 and 246.8, provide that motions 

to reopen shall be subject to the requirements of 8 CFR 103.5. Both 

regulations require that the motion state the new facts to be presented 

at the reopened proceeding and be supported by affidavits or other 

evidentiary material. 

Matter of TaZama, Interim Decision No. 1770, involved a native 

and.citizen of Tonga, who applied for. adjustment of status at a 

deportation hearing in February 1964. After several decisions and 

motions to reopen the special inquiry officer on July 12, 1966 finally 

granted adjustment of status in the exercise of discretion upon condition that a quota number be allocated to respondent by the Department of State. The Service appealed and on February 10, 1967 the 

Board affirmed the special inquiry officer's decision and dismissed the 

Service appeal. On March 13, 1967 the Service moved for reconsideration and reopening, presenting material to show that respondent, 

as of December 12, 1966, had been working full time as a fleet serviceman and urged that the finding that the respondent did not require 

a labor certification was erroneous. On April 17, 1967 we granted the 

Service motion and reopened the proceedings, holding that since the 

cessation of Talanoa's business was reasonably contemporaneous with 

the hearing, this respondent had the burden of establishing his good 

faith intention of carrying on such business and his ability to do so, 

there was a sound basis for reconsideration of his eligibility for adjustment. The special inquiry officer at the reopened hearing held that 

the respondent was subject to the changed requirement of the law, 

amended while his case was pending, which required certification pursuant to section 212(a) (14), denied adjustment of status but granted 

him voluntary departure in lieu of deportation. The Board dismissed 

the appeal and found no basis for estoppel. 

The counsel for the respondent in his brief has attempted to distinguish Matter of Talanoa, Int. Dec. No. 1770 on the ground that in 

the Talanoa case adjustment had not been officially approved because 

a quota number had not yet been made available to him, while in the 

instant case a quota number has been made available. However, as 

we have previously indicated, the assignment of a quota number was 

never finalized and the issuance of an I-151 appears to have been due 

to a clerical error. Had the evidence which the Service discovered 

been presented to the special inquiry officer at the hearing it might 

well have caused him to deny respondent's application for permanent 

resident status and in light of the District Director's explanation for 

the failure to have presented the evidence, "it was not available and 

could not have been discovered or presented at the hearing" within 

the meaning of regulations. 

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Interim Decision #1836 

We do not believe that the difference in the two cases is significant. 

In view of the circumstances of this case, namely, the discovery of 

the evidence before the adjustment of status had been granted, the 

clerical mix-up which resulted in the failure to attach the evidence 

to the respondent's file -which resulted in the evidence being not available, and the authority contained in the regulations, we believe that 

the reeiesion under section 246 of the Immigration and Nationality 

Act is not the sole procedure to rescind the adjustment of status. Under 

the circumstances of the case the motion to reopen is proper and will 

be granted. 

ORDER: It is ordered that the motion to reopen the proceedings 

for the purpose of determining whether respondent merits adjustment 

of status under section 245 of the Immigration and Nationality Act, 

and for such other purposes as may appear appropriate, bo and the 

same is hereby granted. 

620