Interim Decision #2619 

MATTER OF YEUNG 

In Deportation Proceedings 

A-16031948 

Decided by Board October 12, 1977 

When an alien, in deportation proceedings, submits an application for preference status 

under section 203(a)(7) of the Immigration and Nationality Act in conjunction with an 

application for adjustment of status under section 245 of the Act, the decision as to 

whether the alien should be granted preference status is made by the District Director, 

and the immigration judge acted improperly in denying the section 245 application 

before the alien had received written notification of the denial of his petition. 

CHARGE: 

Order. Act of 1952—Section 241(a)(2) t8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained 

longer 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Jules E. Coven, Esquire Paul C. Vincent 

Lebenkott & Coven Appellate Trial Attorney 

One East 42nd Street 

New York, New York 10017 

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members 

In a decision dated November 15, 1976, an immigration judge found 

the respondent deportable under section 241(a)(2) of the Immigration 

and Nationality Act as a nonimmigrant hi transit who had remained 

longer than authorized, ordered him deported, but granted him the 

privilege of voluntary departure in lieu of deportation. He also denied 

the respondent's application for adjustment of status pursuant to section 245 of the Act. The respondent has appealed from that denial. The 

record will be rernanded. 

The respondent is a 29-year-old native and citizen of China who last 

entered the United States on or about January 31, 1975, as an alien in 

transit with a visa authorized to remain in the United States until March 

1, 1975. He remained beyond that time. At the deportation hearing the 

respondent admitted that the allegations of fact in the Order to Show 

Cause were true, but denied that he was deportable as charged. The 

innnigration judge however found that, based upon his admission of the 

truth of the allegations of fact, his deportability as charged had been 

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established by clear, convincing, and unequivocal evidence. We agree. 

The hearing was then continued so that the respondent could submit an 

application for adjustment of status pursuant to section 245 of the Act as 

a refugee under section 203(a)(7). 

In order to establish eligibility for adjustment; of status under section 

245 of the Act, a respondent must establish both that he is admissible to 

the United States and that there is an immigrant visa immediately 

available to him. Although the Department of State Visa Availability 

Bulletin indicated that there were seventh-preference visas available at 

the time of the reconvened hearing, the respondent's petition for refugee status had not been approved and the Government trial attorney 

stated that the District Director had denied the petition and the decision 

was being mailed to the respondent. The immigration judge told the 

respondent that he -would proceed with the hearing on the application 

for adjustment of status; however, he also stated that he would reopen 

the proceedings on his own motion if the application was later approved 

by the District Director. 

On the Notice of Appeal, Form I-290A, the respondent gave several 

issues upon which he was basing his appeal. However, at oral argument 

before this Bo'ard he stated that he was appealing only from the fact that 

the immigration judge denied his application for adjustment of status 

before he had received written notification of the denial of his petition 

for seventh-preference status. The respondent stated that he believed 

that a petition for preference status under section 203(a)(7) of the Act 

could not be considered unless an application for adjustment of status 

was pending and that, therefore, the immigration judge should not have 

denied the section 245 application until the respondent had received 

written notification of the denial of his petition for the seventh-preference status. The respondent stated at oral argument that he had still not 

received a copy of that decision. 

The Code of Federal Regulations specifies that an applicant for adjustment of status under section 245 of the Act who claims to be entitled 

to preference status under section 203(a)(7) of the Act should execute 

and attach to his application for adjustment of status a Form I-590A, 

Application for Classification as a Refugee under the Proviso to section 

203(a)(7), Immigration and Nationality Act. See 8 C.F.R. 245.4. The 

determination as to whether an alien is entitled to this preference is 

made by the District Director. The Immigration and Naturalization 

Service Operations Instructions provide for the processing of such application, and under these instructions if the District Director finds that 

an alien should not be granted preference status under section 203(a)(7) 

of the Act, he is to notify the alien applicant on a Form I-290C of this 

finding and certify the case to the Regional Commissioner (Operations 

Instructions 245.8(b)(5)). 

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The respondent, in the present case, claims never to have been 

notified that his application for preference status under section 203(a)(7) 

was denied by the District Director and the record contains no evidence 

of such a denial or that the case was certified to the Regional Commissioner as required. Since there is nothing in the record which indicates 

that the respondent was informed that his application for preference 

status under section 203(a)(7) of the Act was denied or that other 

required procedures were followed, we shall remand the case to the 

immigration judge so that he may hold the case in abeyance until such 

time as all necessary procedures have been completed, and can then 

hold a new hearing. 

ORDER: The record is remanded to the immigration judge for 

further proceedings consistent with this decision. 

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