Interim Decision #1317 

MATTER OF DAVIS 

In DEPORTATION Proceedings 

A-13486274 

Decided by Board January .O, 1984 

An alien who entered the United States as a nonimmigrant transit without a visa 

(TRWOV) is ineligible for adjustment of status under section 245. Immigration and Nationality Act, as amended, in view of the provisions of 8 ar.n 

214.2(c) (1). 

OrtenoEs : 

Order: Act of 1052—Section 241(a) (1) [8 IT.S.C. 1251(a) (1) 1 —IfeteludableNo immigrant visa. (Withdrawn) 

Lodged: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) '(2)1—Nonimmigrant—Remained longer. 

The case comes forward on appeal from the order of the special 

inquiry officer dated October 17, 1963, denying the respondent's application. for adjustment of status under section 245 of the Immigration and Nationality Act; granting her the privilege of voluntary 

departure in lieu of deportation with the automatic order that if the 

respondent failed to depart as required she should be deported from 

the United States to the Philippines on the lodged charge only. 

The record relates to a native and citizen of the Philippines, female, 

married, who last entered the United States at Honolulu, Hawaii, on 

August 3, 1963. She was in possession of Philippine Passport No. 

27615 which did not contain a nonimmigrant or an immigrant visa 

for admission to the United States and the respondent testified that 

she never did obtain a nonimmigrant or an immigrant visa for entry 

into the United States. She stated that she did obtain a visa for 

admission to Mexico and the passport contains such a visa. The 

respondent identified Exhibit 3 as relating to her. Exhibit 3 is a 

copy of the Form 1-91 issued to her which shows that she was admitted at Honolulu, Hawaii, on August 3, 1963, as TRWOV (transit 

without visa) for immediate and continuous transit to Mexico by 

August 4, 1963. 

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The respondent testified that she entered the United States as a 

tourist with the intention of proceeding to Mexico to get her visa and 

then returning to the United States; that she was supposed to change 

planes in San Francisco and go to Mexico the next day. However, 

when she arrived at San Francisco her fiance informed her that he 

did not have enough furlough time from the Marines to go to Mexico 

with her and that they then decided to get married in the United States 

and try to straighten out her status in this country. She was married 

on August 10, 1963, at Waukegan, Illinois, to a native-born United 

States citizen who is now serving in the United States Marine Corps 

and is stationed in North Carolina. The application for adjustment 

of status indicates that her husband has filed a visa petition in her 

behalf which is pending. 

At the hearing the trial attorney withdrew the charge contained in 

the order to show cause and lodged a "remained.longer" charge under 

section 241(a) (2) of the Immigration and Nationality Act together 

with two additional allegations of fact. The respondent conceded 

the additional allegations that she was admitted to the United States 

as a nonimmigrant transit without a visa for immediate and continuous 

transit to Mexico and was authorized to remain in the United States 

until August 4, 1963, and that she has remained beyond that date. The 

record establishes that the respondent is subject to deportation solely 

on the lodged charge. 

The respondent has applied for adjustment of status to that of a 

permanent resident under section 245 of the Immigration and Nationality Act. She is married to a United States citizen who has filed a 

visa petition for nonquota status on her behalf which is now pending. 

However, under the provisions of 8 MR, 214.2(c) (1) as amended (28 

F.R. 3078 (March 29, 1963) ) it is specifically stated that the privilege 

of transit without a visa may be authorized only under the conditions 

that the alien will depart voluntarily from the United States and that 

he will not apply for adjustment of status under section 245 of the 

Act. Inasmuch as the record establishes that the respondent was admitted to the United States as a transit without a visa on August 3, 

1963 (Ex. 8) and inasmuch as the provisions of the regulation referred 

to above were then in effect, she is not eligible for adjustment of status 

under the provisions of section 245 of the Immigration and Nationality 

Act and her application for adjustment of status was therefore properly denied. The brief of counsel which cites the case of Brownell v. 

Carija, 245 F.2d 78 (D.C. Cir., 1957) has no application because the 

amended regulation referred to was not then in effect. 

The respondent has also applied in the alternative for the privilege 

of voluntary departure. She is residing with her mother-in-law in 

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Milwaukee, Wisconsin. She stated that she does not have funds to 

depart from the United States but that she can obtain funds from her 

husband or from her mother-hi-law. She has never been arrested 

and never been a member of the Communist Party. The grant of 

voluntary departure appears appropriate. The appeal will be 

dismissed.. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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