Interim Decision #2535 

MATTER OF RODRIGUEZ 

In Deportation Proceedings 

A-14559693 

Decided by Board October 4, 1976 

In order for a suspension applicant, who is a native of a contiguous country, to establish 

pursuant to section 244(f) of the Immigration and Nationality Act, as amended, that he 

is ineligible to obtain an immigrant visa, he must show that his best efforts would not 

result in his being able to obtain a visa. Where, as in the instant ease, respondent is 

ineligible for a visa under section 212(a)(17) of the Act and he has not applied and 

refuses to apply for relief (permission to reapply for admission after deportation) -which, 

if granted, would remove the ground of ineligibility, he has not satisfied the requirement of section 244(f) by establishing ineligibility to obtain an immigiant visa; xecordingly, the denial of his suspension application by the immigration judge was proper. 

CHARGE: 

Order: Act of 1952—Section 241(a)(1) (8 1J.S.C. 1251(a)(1)}—Excludable at time of 

entry 

ON BEHALF OF RESPONDENT: Emanuel Braude, Esquire 

215 West 5th Street 

Los Angeles, California 90013 

On October 1 17, 1975, the immigration judge entered an order in which 

he found the respondent deportable, denied the latter's application for 

suspension of deportation, and granted him the privilege of voluntary 

departure. The appeal will be dismissed. 

The record relates to a married male alien, 37 years of age, a native 

and citizen of Mexico, who entered the United States without inspection 

during 1968. He conceded deportability. Accordingly, the finding of 

deportability rests upon evidence which is clear, convincing and unequivocal. 

The relief of suspension of deportation is not available to the respondent, who is a native of a country contiguous to the United States, 

unless he establishes that he is ineligible to obtain an immigrant -visa, 

section 244(f)(3) of the Immigration and Nationality Act. Inasmuch as 

the respondent is the father of a United States citizen, he does not 

require a labor certification and therefore is not ineligible for a visa 

under section 212(a)(14). 

42 
Interim Decision #2535 

The respondent claims that he is ineligible for a visa pursuant to 

section 212(a)(17) as an alien who has been deported and who has not 

received permission to reapply. The respondent has been previously 

deported, and he has never received permission to reapply for admission. He concedes, however, that he has never made an application for 

that permission. Counsel argues that the respondent, who without 

permission appears to be eligible for suspension, cannot be forced to 

apply for permission and thereby be forced to lose his eligibility for 

suspension. Counsel characterizes the suggestion that the respondent 

must -do so as requiring the respondent to "act as his own executioner." 

We reject counsel's argument_ An applicant for suspension who is a 

native of a contiguous country must, by the terms of section 244(f), 

establish that he is ineligible to obtain an immigrant visa. 

In order to establish ineligibility for an immigrant visa, the respondent must show that his best efforts would not result in his being able to 

obtain a visa. That has not been shown in this case, for the respondent 

refuses to apply for relief which is available and which, if granted, would 

remove the claimed ground of ineligibility. Were the respondent to 

obtain permission to reapply, he could utilize the normal consular channels to achieve lawful permanent resident status and he would not need 

the relief of suspension of deportation. The relief of suspension of 

deportation was not designed for such a person. The decision of the 

immigration judge to deny the application was correct. He considerately 

provided that, should an advance application for permission to reapply 

be made and denied, he would, upon his own motion, reconsider his 

denial of the application for suspension. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, the 

respondent is permitted to depart from the United States voluntarily 

within 90 days from the date of this order or any extension beyond that 

time as may be granted by the District Director; and in the event of 

failure so to depart, the respondent shall be deported as provided in the 

immigration judge's order. 

43