Interim Decision #2640 

MATTER OF RAFEPOUR 

In Deportation Proceedings 

A-21017491 

Decided by Board March 13, 1978 

Despite respondent's conviction under 8 U.S.C. 1306(c) (filing application for alien registration containing statements known by him to be false) a deportable offense under 

section 241(a)(5), he is not excludable and, therefore, not ineligible for adjustment of 

status. Matter of R—G--, 8 I. & N. Dec. 128 (BIA 1958) reaffirmed. See also Matter of 

Sanchez, Interim Decision 2617 (BIA 1977). 

CHARGE: 

Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))--Noninunigrant student—

remained longer than permitted 

ON BEHALF OF RESPONDENT: 

Donald L.. Ungar, Esquire 

Phelan, Simmons & Ungar 

517 Washington Street 

San Francisco, California 94111 

ON BEHALF OF SERVICE: 

Sabri Randall. Acting 

Appellate Trial 

Attorney 

Brian B. Simpson 

Trial Attorney 

Milhollan, Chairman; Wilson, Maniatis, and Appleman , Board Members. Board 

Member Maguire dissenting. 

The Service appeals from the decision of an immigration judge, dated 

September 24, 1976, in which he granted the respondent's application 

for adjustment of status. The appeal will be dismissed. 

The record relates to a 26-year-old native and citizen of Iran who 

entered the United States as a nonimmigrant student on January 2, 

1970, authorized to remain until June 8, 1973. On April 14, 1975, the 

respondent was found deportable as charged, but he was granted the 

privilege of voluntary departure until October 14, 1975. No append 

followed from that decision, but the respondent did move to reopen the 

proceedings in order to apply for permanent resident status. On Marcli 

11), 1976, the immigration judge granted the motion to reopen and on 

September 24, 1976, he granted the respondent's application for adjustment of status. The only issue before us on appeal is the respondent's 

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eligibility for adjustment of status under section 245 of the Immigration 

and Nationality Act. 

The Service argues that the respondent is ineligible for section 245 

relief because he was convicted on March 25, 1975, of a violation of 8 

U.S.C. 1306(c) (filing an application for an alien registration with the 

Service containing statements known by him to be false) and, therefore, 

he would immediately become deportable under section 241(a)(5) of the 

Act if granted permanent resident status. The immigration judge, however, found the respondent eligible for adjustment of status because in 

accordance with Matter of R—G—, 8 I. & N. Dec. 128 (BIA 1958), an 

alien would not be deportable under section 241(a)(5) following his 

lawful admission for permanent resident. 

We have recently reaffirmed Matter of R—(—, supra, in Matter of 

Sanchez, Interim Decision 2617 MIA 1977). In Matter of Sanchez, supra, 

we held that an alien previously deported under any section of the Act is 

not forever barred from entering the United States, if the proper waivers 

are obtained, simply because of the conduct which would have rendered 

him deportable under section 241(a)(5) prior to his deportation. Although 

the respondent in the case before us was never previously deported, his 

situation even more closely resembles that in/trotter of R—G— , supra. 

Matter of R—G--- was an exclusion proceeding-, wherein the applicant 

was ordered admitted despite an earlier conviction for violation of one of 

the statutes listed in section 241(a)(&) as giving rise to a ground of 

deportability. In the respondent's case before us, the acts giving rise to 

the conviction for deportable offense under section 241(a)(5) were committed before he either applied for permanent resident status or was 

found deportable on other grounds. 

In view of the fact that an alien applying for adjustment of status is 

assimilated to an alien applying for adjustment of status for adjustment 

of status is assimiliated to an alien seeking admission-into the United 

States, at least insofar as he must not "otherwise be excludable," we see 

no reason for applying a different rule from that described in Matter of 

R–G–, supra, and reaffirmed in Matter of Sanchez, supra_ 

The respondent married a United States citizen on April 10, 1975, and 

her visa petition in his behalf was approved on July 7, 1975. Based upon 

his conclusion that the marriage was bona fide, and that the respondent was a person of good moral character, the immigration judge 

granted him permanent resident status in the exercise of discretion. 

Inasmuch as the immigration judge is given primary responsibility for 

judging the credibility of witnesses,' we will not over turn his determination. Accordingly, the appeal will be dismissed. 

ORDER:The appeal is dismissed. 

See Matter of Teng, interim DecIsiun 2452 (DIA 1975); Matter of T—, 7 L & N. Dee. 

417 (BIA 1957). 

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interim Decision /it2o4u 

Mary P. Maguire, Board Member, Concurring in Part and Dissenting in Part 

While I agree with the majority insofar as they have concluded that 

the respondent is statutorily eligible for adjustment of status pursuant 

to section 245 of the Act under the rationale of Matter of Sanchez, 

Interim Decision 2617 (BIA 1977), I would sustain the Service appeal 

with respect to the immigration judge's favorable exercise of discretion in 

granting section 245 relief. 

The respondent entered the United States on January 2, 1970, as a 

nonimmigrant student, authorized to remain until June 8, 1973. On 

March 26, 1974, after his authorized stay had expired, he married a 

United States citizen who filed a visa petition on May 24, 1974, to classify 

him as an immediate relative. On that same date the respondent filed an 

application to adjust his status to that of a lawful permanent resident. 

On August 12, 1974, the respondent and his alleged spouse were interviewed under oath by an immigration officer in correction with both the 

visa petition filed on behalf of the respondent and the application for 

adjustment of status filed by the respondent. During that interview the 

respondent testified that he resided with his alleged spouse at the 

address shown on the visa petition (Ex. 2). 

Subsequent investigation by the Service determined that the respondent had never resided with his alleged citizen spouse at any address 

and that he had, in fact, paid her five hundred dollars ($500) to marry 

him so that he could adjust his status to that of a lawfully admitted 

permanent resident alien on the basis of his relationship to a United 

States citizen. As a result of the false statements made in conjunction 

with the application for adjustment of status, the respondent was convicted, upon his plea of guilty, on March 25, 1975, in the United States 

District Court for the Northern. District of California of violating 8 

U.S.C. 1306(c), was placed on probation for a period of six (6) months 

and fined one hundred dollars ($1OO). The visa petition and the application for adjustmennt of status were subsequently withdrawn. 

Deportation proceedings were instituted against the respondent on 

March 7, 1975, by the issuance of an Order to Show Cause. In a decision 

dated Apri114, 1975, the immigration judge found the respondent deportable as charged, which the respondent conceded, and granted him the 

Privilege of voluntary departure on or before October 14, 1975. The 

is emigration judge granted the discretionary relief of voluntary departure on the basis of the respondent's marriage to another United States 

c=itizen on April 10, 1975. The respondent had secured a Nevada divorce 

om his first wife on April 7, 1975. No appeal was taken from the 

iltnmigration judge's order. 

On July 7, 1975, the Service approved a visa petition filed on respondent's behalf by his present wife and on July 14, 1976, the respondent 

submitted an application for adjustment of status. In an order dated 

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Interim Decision #2640 

March 10, 1976, the immigration judge reopened the deportation proceedings to permit the respondent to pursue his application for adjustment of status. After further hearings on August 18, 1976, and on 

September 24, 1976, the immigration judge entered an order on the 

latter date granting the respondent's application for adjustment of 

status. The Service appealed from the decision of the immigration judge 

and contended that : (1) the respondent is not eligible for an immigrant 

visa within the meaning of section 245 because he would be deportable 

upon admission under section 241(a)(5), 8 U.S.C. 1251(a)(5): and (2) the 

immigration judge erred in granting discretionary relief under section 

245. I concur with the majority insofar as they have concluded that the 

respondent is eligible for an immigrant visa under the rationale of 

Matter of Sanchez, supra. 

However, I would sustain the Service appeal from the immigration 

judge's favorable exercise of discretion with respect to the respondent's 

application for adjustment of status. The respondent was admitted to 

the United States as a student on January 2, 1970, and his authorized 

stay expired on June 8, 1973. He concededly entered into a "sham" 

marriage with a United States citizen in order to obtain an immigration 

benefit. He made false statements to a Service officer with respect to 

the bona fides of his marriage in an interview of his application for 

adjustment of status. After his conviction and after the institution of 

deportation proceedings agaiiml, him, the respondent secured a divorce 

and married another United States citizen. 

As pointed out by the Attorney General in Matter of Bias, Interim 

Decision 2485 (BIA 1974; A.G. 1976), adjustment of status is not necessarily available on a simple showing of eligibility. The extraordinary 

discretionary relief provided in section 245 of the Act can only be 

granted in meritorious cases, and the burden is always upon the alien to 

establish that his application for that relief merits favorable consideration. Dirie v. INS, 400 F.2d 658 (9 Cir. 1968), cert. denied, 394 U.S. 

1015 (1969); Santos v. INS, 375 F.:2c1 262 (9 Cir. 1967); Matter of 

Ortiz-Prieto, 11 I. & N. Dec. 817 (BIA 1965). 

A showing of eligibility for adjustment of status which carries with it 

its own strong equities, such as immediate relative status, can have a 

positive influence on the exercise of discretion and, in the absence of 

adverse circumstances, should prevail. Matter of Blas, supra; Matter of 

Anti, 13 I. & N. Dec. 494 (BIA 1970). 

Thus, although an application for adjustment of status based on 

immediate relative status is initially appealing, there may be other 

factors present which undercut the quality of the case presented. In 

'flatter of Bias, supra, the Attorney General found that, despite the fact 

or the respondent's apparently bona Me marriage to a United States 

citizen, the fact that he had made misleading responses in seeking his 

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Interim Decision #2640 

initial visitor's visa warranted denial of the respondent's section 245 

application. 

Likewise, this Board and the courts have held that an alien who is 

admitted to the United States as a nonimmigrant but who is found to 

have had, at the time of entry, a preconceived intent to remain in the 

United States permanently, does not merit the favorable exercise of 

discretion, despite familial relationships with United States citizens or 

lawful permanent residents. See Soo Yuen v. INS, 456 F.2d 1107 (9 Cir. 

1.972); Lee v. INS, 446 F.2d 881 (9 Cir. 1971); Ameeriar v. INS, 438 F.2d 

1028 (3 Cir.), cert. denied, 404 U.S. 801(1971); Chen v. Foley, 385 F.2d 

929 (6 Cir. 1967), cert. denied, 393 U.S. 838 (1968); Matter of FuentesBlanco, 13 I. & N. Dee. 128 (BIA 1968). 

In my opinion, the respondent has not established that he merits the 

extraordinary relief of adjustment of status. He had admitted entering 

into a sham marriage to circumvent the immigration laws of the United 

States. He was convicted of violating the immigration laws. His present 

marriage was entered into at a time when he was already the subject of 

deportation proceedings. I do not think that his present marriage to a 

United States citizen is sufficient equity to outweigh the very serious 

adverse factors In this case. I would, therefore, reverse the decision 01' 

the immigration judge and deny the respondent's application for adjustment of status. 

474