Interim Decision #2383 

MATTER OF OZCAN 

In Deportation Proceedings 

A-20062639 

Decided by Board May 16, 1975 

(1) Where the applicant for adjustment of status under section 245 of the Immigration and 

Nationality Act, misstated or at least materially overstated his qualifications as a diesel 

mechanic on his application for a labor certification a favorable exercise of discretion to 

grant permanent residence status was not warranted. 

(2) An inimigratiOn judge may set the time for voluntary departure at the time of his 

initial decision; at a reopened hearing the judge may grant voluntary departure anew, 

however the period of departure may then only be set by the District Director. 

CHARGE: 

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 12,51(a)(9)i—After admission as a 

nonimmigrant under section 101(a)(15)—failed to comply with 

the conditions of such status. 

ON BEHALF OF AESPOPT9R7r: 

Pro se 

ON BEHALF or SRI/NICE: 

Paul C. Vincent, Esquire 

Appellate Trial Attorney 

This is an appeal from a decision of an immigration judge dated 

February 8, 1974, denying the respondent's application for adjustment 

of status which was submitted at a reopened hearing. The appeal will be 

dismissed. 

The respondent is a 34-year-old married male alien who is a native 

and citizen of Turkey. He entered the United States as a nonimmigrant 

visitor for pleasure on May 25, 1973. On August 21, 1972, the respondent was found deportable under section 241(a)(9) of the Immigration 

and Nationality Act as an alien who had failed to maintain his nonimmigrant status. He was granted sixty days voluntary departure time. No 

appeal was taken from that decision. Thereafter, the respondent's motion to reopen to permit him to apply for adjustment of status was 

granted. 

The respondent predicates his application for adjustment of status on 

a claim that a visa is immediately available to him as a nonpreference 

immigrant. The respondent has submitted an approved labor certifica-

. tion as a diesel mechanic. 

301 
Interim Decision #2383 

The immigration judge denied the application on the ground that the 

respondent was statutorily ineligible for adjustment of status in that he 

had misrepresented his work experience in obtaining his labor certification. He also found that the application should be denied in the exercise 

of discretion. 

There is at least some question that the respondent's statements on 

his application for a labor certification amount to a material misrepresentatidn. See 29 CFR 60.5(g). Cf. La Madrid—Peraza v. INS, 492 F. 2d 

1297 (C.A. 9, 1974). However, we need not resolve that issue since we 

agree with the immigration judge that adjustment of status should be 

denied in the exercise of discretion. 

The respondent has submitted, in connection with his application for a 

labor certification, a letter of reference showing that he worked as a 

diesel mechanic for nearly five years, from 1959 to 1964. He admitted 

that he had obtained this letter subsequent to obtaining his visa, but 

prior to his departure from Turkey. The immigration judge properly 

inferred that the respondent obtained this letter to assist him in locating 

a job in the United States and thereby circumvent the normal visa 

issuing procedure. The respondent's explanation of why he brought this 

letter with him to the United States is not persuasive. He claims that he 

intended to use this letter to obtain employment when he returned to 

Turkey. 

The immigration judge found also that the respondent's claim that he 

had been employed as a mechanic from 1959 to 1964 to be doubtful. The 

respondent was unable to recall the name of his employer or the dates of 

employment when asked for this information by the immigration judge. 

Finally, the immigration judge found that the respondent has misstated, 

or at least overstated, his qualifications as a diesel motor repairman. 

The respondent has admitted at the reopened hearing, that contrary to 

the statements made on his application for a labor certification, he had 

not been self-employed as a diesel repairman from 1964 to 1978, but had 

instead worked on his own farm. The respondent claims that he did not 

make such a statement, but only intended to state that he had repaired 

diesel engines while running his own farm. Nonetheless, this information appears over the respondent's signature. 

Balanced against these unfavorable factors, the respondent has 

shown no fi.ctors in his favor. His wife and child remain in Turkey. The 

respondent's only relatives in the United States appear to be his sister, 

who is a lawful permanent resident, and her husband. We thus agree 

with the immigration judge that a favorable exercise of discretion is not 

warranted in this case. The appeal will therefore be dismissed. 

The immigration judge granted the respondent 28 days additional 

voluntary •departure time, notwithstanding that the reSpondent, had 

failed to dedart, when previously granted voluntary departure. .An ha302 
Interim Decision #2388 

migration judge may set the time for voluntary departure at the time of 

his initial decision, but extension may be granted only by the district 

director. 1The immigration judge however, may grant voluntary departure anew. Matter of Onyedibia, 15 I. & N. Dec. 37 (BIA 1974); Matter 

of Yeung, 13 I. & N. Dec. 528 (BIA 1970). Where there is a new grant, the 

time and conditions of departure are to be set by the district director. 

Thus the immigration judge here had only the power to grant the 

respondent voluntary departure anew. Accordingly, we shall modify the 

immigration judge's order by treating it as a new grant of voluntary 

departure, but directing that the time and conditions of departure be set 

by the district director. 

ORDER: The appeal is dismissed. 

Further order: The respondent is permitted to depart the United 

States voluntarily at such time and under such circumstances as the 

district director may direct; and in the event of failure so to depart he 

shall be deported as provided in the immigration judge's order. 

See 8 CFR 244.2 

303