Interim Decision #2485 

MATTER OF BLAB 

In Deportation Proceedings 

A-18487421 

Decided by Board August 2, 1974 and October 31, 1974 

Decided by Attorney General March 10, 1976 

(1) Although ilunily ties will ordinarily result in favorable exercise of administrative 

discretion under section 245 of the Immigration and Nationality Act, they neither must 

nor should do so where it appears that the alien has engaged in a course of deception 

designed to produce those very ties. 

(2) Where respondent in application for nonimmigrant visitor's visa made misleading and 

incomplete statementd to the consular officer concerning his intentions in coming to the 

United States, the whereabouts of his parents and the nature of his employment in the 

Philippines, even though such misrepresentations did not amount to fraud or misrepresentation within the meaning of section 212(a)(19) of the Aet (Matter of S— and BC—, 0 I. & N. Dec. 486 (A.G. 1051)), relief under section e.45 was denied notwithstanding the fact that respondent has a U.S. citizen spouse, because such equity does not 

overcome the adverse impact of respondent's misrepresentations in applying for entry 

into the United States. 

(3) Matter of Arai, 13 L & N. Dec. 494 (BIA 1970) reaffirmed. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor— 

remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

John M. Weir, Esquire Sam Bernsen 

483 Castro Street General Counsel 

San Francise), California 94114 Paul C. Vincent 

Appellate Trial Attorney 

BEFORE THE BOARD 

(August 2, 1974) 

On April 18, 1973, an immigration judge found • the respondent 

deportable as charged, granted him the privilege of voluntary departure, ordered his deportation to the Republic of the Philippines, in the 

event of his failure to depart when and as required, denied Ida application for permanent residence status under section 245 of the Immigration and Nationality Act, in the exercise of administrative discretion, 

626 
Interim Decision #2485 

and certified the case to us for final decision. The immigration judge's 

decision will be affirmed. 

The respondent, a 38-year-old male native and citizen of the Philippines, was admitted to the United States at Honolulu, Hawaii, as a 

visitor, on or about September 21, 1970. On November 13, 1972, he was 

granted the privilege of departing voluntarily from the United States on 

or before November 28, 1972, without the issuance of an order to show 

cause. He failed to depart within the specified time. His deportability 

under section 241(a)(2) of the Immigration and Nationality Act has been 

established by clear, convincing, and unequivocal evidence. 

On March 18, 1973, the respondent married a woman who obtained 

United States citizenship a month later, and who, thereafter, filed a visa 

petition to accord him immediate relative status. That petition was 

approved. 

At the hearing before the immigration judge, the respondent applied 

for adjustment of his status to that of a permanent resident, under 

section 245 of the Immigration and Nationality Act. The immigration 

judge denied that relief in the exercise of administrative discretion, but 

granted the respondent's alternative application for the privilege of 

voluntary departure. 

The respondent was adopted by a couple when he was only one and a 

half years old (Tr., p. 23). His adoptive parents have resided in the 

United States for many years (Tr., p. 22). They are United States 

citizens. In his correspondence with them, he discussed with them the 

matter of a visa petition to be filed by them on his behalf after his entry 

into the United States (Tr., p. 22). When he filed his nonimmigrant visa 

application with the American Consul in Manila he disclosed none of the 

foregoing facts. On the contrary, he stated in his application that 

neither of his parents was in the United States, and that he planned to 

stay in the United States for 35 days. For the benefit of the American 

Consul he described himself as a "supervisor" with Star-Lite Philippines, Inc. (Exhibit 3, Visa Application, Form FS-257a). Actually, he 

was doing some contract work for that company (Tr. p. 27) after a 

regular eight-hour working day with the Mitsui Corporation which 

employed him as a draftsman (Tr., p. 25). 

The record further shows that the respondent came to the United 

States from the Philippines to get away from his family, that is, from his 

wife and their four minor children (Tr., p. 18). He came here with the 

intention to divorce his wife (Tr., p. 19), to remarry in the United States 

(Tr., p. 19), and to stay here. When he applied for his nonimmigrant visa 

with the American Consul he stated that his purpose was to take a 

"pleasure trip" (Exhibit 3, Form FS-257a). He did not reveal his true 

plans. 

The respondent's adoptive parents filed a fourth-preference visa peti627 
Interim Decision #2485 . 

tion for him. However, during the times here pertinent, no visa numbers were available for natives of the Philippines who were within the 

fourth-preference class. Eventually, the respondent's adoptive parents 

withdrew thia visa petition which they had filed on his behalf (Tr., p. 21). 

They have had no contacts with him for at least a year (Tr., p. 11). 

The respondent has managed to carry out his preconceived plans. He 

went to Nevada for two months (Tr., p. 16), secured a divorce from his 

wife, who was, and still is, in the Philippines, and married his present 

wife, who was then a lawful permanent resident of the United States. 

The immigration judge is convinced that that kind of conduct should 

preclude the granting of adjustment of status. Not finding any unusual 

and appealing circumstances present, he denied the application for 

section 245 relief. We fully agree. 

We are quite aware of the difficulties which confront immigration 

judges in matters of this kind. As in all other matters which involve the 

exercise of administrative discretion, the immigration judge's decision 

will depend, and must be based, on the facts of the particular case. In 

voicing his concern, this immigration judge has added that the respondent's case is one of many in which aliens are proceeding in a similar 

fashion, abandoning their families and causing tribulations to their 

dependents. While the facts of record amply support the denial of this 

respondent's application for section 245 relief, we emphasize that no 

decision' should ever rest, or even give the slightest appearance of 

resting, upon generalizations derived from evaluations of the actions of 

members of any group of aliens. Every adjudication must be on a 

case-by-case basis. Were we to promulgate overly strict guidelines, we 

would, in erect, infringe upon the immigration judge's discretionary 

authority. Thus, the guidelines which we adopted have of necessity 

been general, and'not specific. 

In Matter of Ortiz-Prieto, 11 I. & N. Dec. 317 (BIA 1965), we emphasized that: 

.. the applicable statute does not contemplate that all aliens who meet the required 

legal standardi will be granted adjustment of status to that of a permanent resident 

since the grant of an application for adjustment of status is a matter of discretion and of 

administrative grace. not mere eligibility; discretion must be exercised by the Attorney 

General even though statutory prerequisites have been met." 

In Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), we attempted to 

clarify the language which we had used in Ortiz-Prieto, supra. We 

stated the following: 

"It is difficult and probably inadvisable to set up restrictive guide lines for the exercise 

of discretion. :Problems which may arise in applications for adjustment must of necessity 

be resolved on an individual bisis. Where adverse factors are present in a given 

application, it may be necessary for the applicant to offset these by a showing of unusual 

or even outstanding equities. Generally, favorable factors such as family ties, hardship, 

628 
Interim Decision #2485 

length of residence in the United States, etc., will be considered as countervailing 

factors meriting favorable exercise of administrative discretion. In the absence of 

adverse factors, adjustment will ordinarily be granted, still as a matter of discretion." 

It appears that there is a need for further clarification. 

Whenever an alien applies for discretionary relief in immigration 

matters, he bears the burden of showing why administrative discretion 

should be favorably exercised. Thus, an alien who, at a hearing held 

before an immigration judge, applies for adjustment of his status to that 

of a lawful permanent resident, has the burden of establishing that the 

requested relief should be granted in the exercise of discretion, 8 qR 

242.17(d); Chen v. Foley, 385 F.2d 929 (C.A. 6, 196'7), cert. denied 393 

T.J.S. 838; Thomaidis v. INS, 431 F.2d 711 (C.A. 9, 1970), cert. denied 

401 U.S. 954; Matter of Ortiz-Prieto, supra. 

Where an alien and the alien's spouse have been living apart for many 

years, the marriage has existed, in name only, the alien visits in. the 

United States, enters into a bona fide marriage with an American citizen 

or lawful permanent resident after a divorce from the foreign spouse, 

and becomes the beneficiary of an approved visa petition, and there are 

no adverse factors present, the alien's application for adjustme4t of 

status is not likely to present any problems. However, those are not thefacts in the case that is now before us; Here the respondent's scheme 

precludes the favorable exercise of admims' • trative discretion. The provisions of the Immigration and Nationality Act are supposed to favor 

the reuniting of families. It would be unreasonable .to ascribe to Congress an intention to promote the breakup of aliens' marriages abroad. 

We reject, as erroneous, any interpretation of the Arai standards which 

would require a grant of adjustment of status in every case in which the 

alien has succeeded in negotiating a marriage to a United States citizen 

or to a lawful permanent resident alien. Specifically, we emphasize that 

immigration judges are not required to disregard the abandonment of an 

alien's spouse and children in every case in which the alien has, in this 

country, divorced the spouse, and has remarried here. Remarriage in 

this country does not excuse all else. Matter of Tayeb, 12 I. & N. Dec. 

739 (BIA 1968). 

Even the privilege of voluntary departure is not to be had for the 

mere asking. Under the provisions of section 244(e) of the Immigration 

and Nationality Act, an alien who applies for that privilege has to 

"establish to the satisfaction of the Attorney General that he is, and his 

been, a person of good moral character for at least five years immediately preceding his application for voluntary departure under this 

subsection." In Matter of Gamboa, 14 L & N. Dec. 244 (BIA 1972), we 

mentioned a few of the factors which will be considered when an application for the privilege of voluntary departure has been made. , Adjustment of status is a much higher form of discretionary relief than a grant 

629 
Interim Decision #2485 

of voluntary departure. While the provisions of section 245 of the Act, 

unlike those of section 244(e), do not specifically require that the alien 

have been a :person of good moral character during a certain period of 

time, an alien's.good moral character or lack thereof is an important 

factor. 

Adjustment of status under section 245 of the Act was not designed to 

supersede the regular consular visa-issuing processes or to be granted 

in non-meritorious cases. Chen v. Foley, supra. An applicant who meets 

the objective prerequisites for adjustment of status is in no way entitled 

to that relief. Jarecha v. INS, 417 F.2d 220 (C.A. 5, 1969). That relief is 

extraordinary inasmuch as it dispenses with ordinary immigration procedures. Chen v. Foley, supra. We therefore held in Matter of OrtizPrieto, supra, and affirm, that the extraordinary discretionary relief 

provided in section 245 of the Act can only be granted in meritorious 

cases, and that the burden is always upon the alien to establish that his 

application for that relief merits favorable consideration. See also Santos v. INS, 375 F.2d 262 (C.A. 9, 1967); Diric v. INS, 400 F.2d 658 (C.A. 

9, 1968), cert. denied 394 U.S 1015. 

In Matter cfArdi, supra, at page 496, we had stated the following: "In 

the absence of adverse factors, adjUstment will, ordinarily be granted, 

still as a mat:4r of discretion." That stateinent should not be misinterpreted as im?Iying that adjustment of status must be granted in the 

absence of major adverse factors, or that the Service has the burden of 

showing that the alien is not entitled to adjustment of status. Adjustment of statue pursuant to section 245 of the Immigration and Nationality Act may be granted where the alien has established that 

favorable exercise of discretion is warranted. 

The immigration judge's decision was correct. It will be affirmed. 

ORDER: The decision of the immigration judge denying the respondent's application for permanent resident status under section 245 of the 

Immigration and Nationality Act is affirmed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

without expense to the Government within 30 clays from the date of this 

order or any extension beyond that time as may be granted•by the 

district director, and under such conditions as the district director shall 

direct. 

Further order: In the event of the respondent's failure to depart when 

and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings, and the following order 

shall thereupon become immediately effective: the respondent shall be 

deported from the United States to the Republic of the Philippines on 

the charge contained in the order to show cause. 

680 
Interim Decision #2485 

Maurice A. Roberts, Chairman, Dissenting: 

I respectfully dissent from the decision of the majority. In the guise of 

"clarification", the Board today recedes from the general (and, in my 

view realistic) criteria laid down in Matter of Arai, 13 I. & N. Dec. 494 

(MA! 1970). In doing so, it opens the door to the vague standards which 

prevailed in our pre-Arai formulations. In my estimation, denial of 

section 245 adjustment is not warranted on this record, either on the 

basis articulated by the immigration judge or on the somewhat different 

rationale advanced by the majority of this Board. 

The respondent is a 40-year-old, married male alien, a native and 

citizen of the Philippines, who was admitted to the United States as a 

nonimmigrant visitor on or about September 21, 1970 and remained 

longer than permitted. He left behind in the Philippines his wife and 

four minor children. He and his wife had had various differences and 

before he left the Philippines he had made up his mind to divorce her in 

the United States, as there is no divorce in the Philippines (Tr. pp. 11, 

18, 19, 20). On arrival, he stayed with his adoptive parents, United 

States citizens, who had adopted him in the Philippines when he was a 

year and a half old. A few weeks after arrival, he met Rufina Agcaoili, a 

native of the Philippines, who was then a permanent resident and is now 

a citizen of the United States_ She became his "girl friend," and after 

obtaining a divorce from his wife in Reno, Nevada, respondent and 

Rufina were married on March 18, 1973. The bona fides of that marriage 

is not disputed' (Tr. p. 35). On the approval of Rufina's immediate 

relative visa petition in his behalf, the respondent became eligible for 

adjustment of status under section 245 of the Immigration and Nationality Act. 

At the deportation hearing, respondent's deportability was not seriously disputed and he applied for section 245 adjustment. The immigration judge apparently found him to be statutorily eligible for the relief 

sought, but denied it in the exercise of discretion and certified his 

decision to the Board for review. The immigration judge apparently 

concluded' that the respondent had had a preconceived intent to remain 

here when he applied for his nonimmigrant visa. This adverse factor, he 

concluded, was not sufficiently counterbalanced by "unusual and appealing, circumstances" to warrant a grant of relief. The precise basis for his 

unfavorable exercise of discretion was stated as follows (opinion, pp. 

2-3): 

This type of case, and there are many of them, distresses me more than any other 

kind I am required to hear. The word has gotten around that if an alien marries a citizen 

or permanent resident he can stay. Indeed, in the instant case, the respondent admitted. 

that when he came to the United States it was with the intention of divorcing his wife 

and remarrying so he would not have to leave. Consequently each time I am confronted 

with an application for permanent residence in such a case, I feel that if I grant it, my 

631 
Interim Decision #2485 

decision will serve to encourage other aliens to desert their families abroad and that, in 

part, I will be responsible. I am cognizant of the fact if an alien is forced to leave the 

United Staten, it will result in a hardship to his wife here, but I cannot overlook the 

tribulations to which he has subjected his overseas family. 

If applications in such cases were to be denied except where there are unusual and 

appealing circumstances present, it might help to ameliorate the problem. However, it 

is not one that acting individually, I can resolve. It is more a policy question to which the 

Board of Immigration Appeals should address itself. Accordingly, although I shall deny 

the application because I do not find any unusual or appealing circumstances present, I 

shall certify the case to the Board of Immigration Appeals for final decision. 

The immigration judge's failure to make specific fact findings leaves 

me somewhat in the dark as to just what he meant when he referred to 

"[Oils type of case" and "such cases", in which he believes denial of 

relief should be the rule. I can only infer that the immigration judge 

concluded that respondent's case followed the factual pattern of many 

other cases which he had adjudicated and which had distressed him. In 

those pattern cases, presumably, the alien without justification disrupted an otherwise viable marriage and deserted his wife and children 

in the Philippines with the intent of coming to the United States in the 

guise of a nonimmigrant visitor, obtaining a quick divorce here, and 

promptly marrying a United States citizen whose visa petition in his 

behalf would pave the way for section 245 adjustment. If the immigration judge thus appraised the respondent's situation, the record does not 

support the appraisal. 

On the record, it is not at all clear, that the break-up of respondent's 

first marriage was attributable to fault on respondent's part. The record 

does not clearly develop who was at fault. The respondent testified that 

he and his first wife had had "varying differences" and that he came to 

the United States "to avoid trouble with her family" (Tr. p. 11); that 

"she prefers to live with her parents and I don't like it so I have to 

leave—live away from them" (Tr. p. 18); that his relationship with his 

former wife in the Philippines was not very good (Tr. p. 20); that his 

return to her would cause him the same "mental anguish" (Tr. p. 21). 

Conceivably, the break-up .of the marriage could have been attributable 

to fault on the part of respondent's wife. Conceivably, the respondent 

may have been fully justified as a matter of law in leaving her. Consequently, unless we are to say that it is completely immaterial that the 

wife may have been solely responsible for the failure of the marriage, if 

this question is one which is relevant in the grant or denial of discretionary relief, it should have been developed of record. Certainly, the 

evidence does not support a finding that the respondent without justification disrupted an otherwise viable marriage for the purpose of achieving permanent residence in the United States. 

Similarly, the record does not support the notion that the respondent 

deserted and failed to support his children. The respondent testified 

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Interim Decision #2485 

that he sent money periodically to his wife and children in the Philippines (Tr. pp. 13-15). The divorce decree required him to send $25 

monthly for the support of each child and $50 for his first wife. He 

testified he complied fully (Tr. pp. 14-15) and the immigration judge did 

not accept the trial attorney's suggestion that respondent be required to 

submit cancelled checks to prove such .compliance (Tr. p. 15). The 

immigration judge apparently concluded that discretionary denial was 

warranted even if respondent could prove compliance. The immigration 

judge justified his disregard for the hardship to respondent's citizen wife 

because "I cannot overlook the tribulations to which he has subjected his 

overseas family" (Opinion, p. 3). The record is devoid of evidence of such 

tribulations. 

In thus making fact findings and drawing conclusions based on matters outside the administrative record, the immigration judge repeated 

a pattern already manifested in other cases involving Filipino applicants 

for section 245 adjustment. In Matter of Salvador, file A-17207299 

(unreported), the same immigration judge stated: 

"By now, everyone dealing with such matters is aware that aliens from the Philippines 

will engage in any fraud to get here and will do anything to stay. Attorneys have 

repeatedly informed me that 'when they are consulted by aliens who have been told to 

leave the United States they inform them that unless they are married to citizens or 

permanent residents, nothing can be done for them. The advice sivenby such attorneys 

is quite accurate and results in cases like this. 

In the San Francisco district we have been inundated with cases of aliens who have 

obtained their visitor's visas by fraud and who have gotten married after they were told 

they must leave the United States. When an alien enters into a marriage forced by the 

knowledge that he must otherwise return to the Philippines, it may reasonably be 

inferred that such marriage will last only long enough for permanent resident status to 

be acquired. There may be a hardship to a spouse to require an alien to leave the United 

States in those few cases where the marriages are bona fide; but this should not be the 

overriding consideration. The Board of Immigration Appeals has recognized that unless 

there is adherence to the policy of requiring departure, effective administration of the 

immigration laws can be seriously impeded. Matter of AI, 3 I. & N, Dec. 490. 

The inning' ration laws should not be administered in such fashion as to encourage an 

alien to perpetuate a fraud on the Government so he can get here and then, instead of 

punishing him, reward him with permanent resident status. It will only assure that 

more and more aliens will engage in such frauds. Indeed, it has long since produced that 

result. The saddest of these eases are those like the instant one in which the adininistration of the law has caused aliens to forsake their wives and children in the Philippines." 

See also Matter of Macapinlae, file A-18988654 (unreported), in which 

the same immigration judge stated: 

"By now, everyone dealing with such matters is aware that aliens from the Philippines 

will engage in any fraud to get here and will, do anything to stay. Attorneys have 

repeatedly informed me that when they are consulted by aliens who have been told to 

leave the United States they inform them that unless they are married to citizens or 

permanent residents, nothing can be done for them. The advice given by 'such attorneys 

is quite accurate and results in cases like this. 

633 
Interim Decision #2485 

In the San Francisco District we have been inundated with cases of aliens who have 

obtained their visitor visas by fraud and who have gotten married after they were told 

that they must leave the United States. When such an alien marries it is undoubtedly a 

continuation of the fraud and the 'marriage lasts only long enough for permanent 

resident status to be acquired. There may be a hardship to a spouse to require an alien 

to leave the Uni ;ad States in those few cases where the marriages are bona fide; but this 

should not be the overriding consideration. The immigration laws should not be administered in such fashion as to encourage an alien to perpetrate a fraud on the 

government so ne can get here and then, instead of punishing him, reward him with 

permanent resident status. It will only insure that more and more aliens will engage in 

such frauds. Inc eed, it has long since produced that result. The saddest of these cases 

are those like the instant one in which the administration of the law has caused the 

desertion of wives and children in the Philippines. In this ease there was fraud in 

obtaining the visitor's visa, a wife and eight children in the Philippines were deserted, 

and the respondent married after he was told to leave the United States. He should be 

deported." 

In Mar Gong v. Brownell, 209 F.2d 448 (C.A.9, 1954), in reversing a 

judgment and remanding for new findings, the court stated (at app. 450, 

453): 

"What has canoed thin court considerable difficulty in the application of the rule just 

mentioned, is the fact that the trial court in directing the preparation of findings in favor 

of the defendant, filed an extensive opinion which creates the impression that the • 

findings are predicated upon considerations other than the evidence given in this 

particular cam.• (p. 450). 

* * * * * 

"The situation here is in many respects similar to that which confronted us in 

Takehara v. Miles, supra, in which we reversed ajudgment of the trial court denying a 

similar application for adjudication of citizenship for the reason that we were convinced 

that the trial court in making its findings had done so in reliance upon considerations 

which in our opinion should have carried no weight in that particular case. Similarly we 

think that the ccurt here should not have given weight to its experiences, unfortunate 

as they may has e been, in other cases, in arriving at its findings with respect to the 

appellant. Each case should be allowed to stand upon its own bottom." (p. 453). 

It seems to me that the immigration judge here, in exercising administrative discretion unfavorably to the respondent, improperly gave 

weight to his experiences in other cases involving Filipinos in arriving 

at his findings with respect to the respondent. The immigration judge's 

conclusion that the respondent left his wife without cause and deserted 

his children is not supported by the evidence of record. Reversal would 

be warranted on this basis even if there were no other. But there is 

another. 

I call attention to the immigration judge's foregoing lapse, not in 

disparagement of the immigration judge, who is a keen observer and a 

good lawyer, but to underscore the need for objective standards in 

exercising administrative discretion. Mere eligibility for the relief 

sought is, of course, merely one of the elements; discretion must still be 

exercised. The immigration judges (and the members of this Board on 

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Interim Decision #2485 

appeal) wield awesome power in exercising administrative discretion. 

Where, as here, a deportable alien is married in good faith to a United 

States citizen wife and is eligible to have his status adjusted so that he 

can remain here with her permanently, our discretionary determination 

can either permit them to remain united or tear them apart. There are 

thirty-one immigration judges throughout the United States and five 

members of the Board. Unless some objective standards are laid down 

for the exercise of administrative discretion, decisions could be based on 

our own unfettered and subjective notions. An intolerant immigration 

judge could deny relief to aliens whose cultural patterns, moral standards, or life style differed from his own. A hostile or xenophobic 

immigration judge could vent his spleen on aliens he personally considered offensive without articulating the actual basis for his decision. 

Unless standards are laid down which are not illusory and can be 

uniformly applied, we depart from even-handed justice and the rule of 

law. 

The criteria which we have announced from time to time in our 

reported pre-Arai decisions have not been meaningfully adequate and 

have been the subject of extensive criticism. See, e.g., Sofaer, Judicial 

Control of Informal Discretionary Adjudication and Enforcement, 72 

Col. L. Rev. 1293 (1972); Ameeriar v. INS, 438 F.2d 1028 (C.A. 3, 

1971). 

We held at an early date that an alien to whom a nonquota visa was 

available abroad and who entered as a nonimmigrant with the intention 

of obtaining section 245 adjustment, thereby circumventing the consular 

visa-issuing process, should be denied adjustment in the exercise of 

discretion, Matter of Garcia-Castillo, 10 I. & N. Dec. 516, 790 (BIA, 

1964). Where the intention to remain here permanently was formulated 

after nonimmigrant entry, we authorized adjustment, Matter of Barrios, 10 I. & N. Dec. 172 (BIA 1963). In the face of circumvention of the 

consular visa-issuing process, we held that "substantial equities" should 

be required before discretion should be favorably exercised, Matter of 

Rubio-Vargas, 11 I. & N. Dec. 167 (BIA 1965). In Matter of OrtizPrieto, 11 I. & N. Dec. 317 (BIA 1965), we went further and sustained 

the denial of relief in the exercise of discretion to an eligible alien who 

had acted in good faith because there were no "outstanding equities" in 

his case. In Matter of Leger, 11 I. & N. Dec. 796 (BIA 1966), we stated, 

"There must be outstanding equities" in his case. In Matter of Leger, 11 

I. & N. Dec. 796 (BIA 1966), we stated, "There must be outstanding 

equities, in a general meritorious case, to warrant [the grant of adjustment]." In Matter of Ramirez, 12 I. & N. Dee. 78 (BIA 1967), we held 

that section 245 adjustment "should only be granted in meritorious 

cases." 

Because of growing discontent with the illusory standards theretofore 

635 
Interim Decision #2485 

announced, a more meaningful criterion was attempted in Matter of 

Arai, 13 I. & N. Dec. 494 (BIA 1970). Clarifying and modifying the 

language of Matter of Ortiz-Prieto, supra, we set forth the following 

superseding guide-lines:, 

"It is difficult and probably inadvisable to set up restrictive guide lines for the 

exercise of discretion. Problems which may arise in applications for adjustment of status 

must of necessity be resolved on an individual basis. Where adverse factors are present 

in a given application, it may be necessary for the applicant to offset those by a showing 

of unusual or oven outstanding equities. Generally, favorable factors such as family 

ties, hardship, length of residence in the United States, etc., will be considered as 

countervailing factors meriting favorable exercise of administrative discretion. In the 

absence of adverse factors, adjustment will ordinarily be granted, still as a matter of 

discretion," (Emphasis supplied). 

These standards have proved to be generally satisfactory. Most of the 

immigration judges have evinced little difficulty in accepting them (as 

they are bound to do) and in applying them. I see no sound reason to 

recede from those standards, in the guise of "clarifying" them, and going 

back to the former illustory standards. The Board today affirms (Opinion, p. 7) the Ortiz-Prieto holding that section 245 relief can only be 

granted in "meritorious" cases. A requirement that a case be "meritorious" is illusory unless the term is defined. Without further guide lines to 

determine which case is meritorious and which case is not, it is left to 

each immigration judge to make this value judgment of the basis of his 

own subjective notions. 

Thus, one immigration judge may consider a case lacking in merit if 

the alien has divorced his spouse abroad, regardless of who was at fault. 

Another may find an absence of merit only if the break-up of the 

marriage was attributable to the alien applying for section 245 relief. 

Another may focus instead on the bona-fides of the marriage to the 

United States citizen spouse and the effect upon that marriage of the 

alien's enforced departure. Conceivably, some immigration judge might 

conclude that a case is meritorious if the grant of section 245 adjustment 

will help to ir aintain the integrity of the American marriage, even 

though the alien's prior conduct was such as would, standing alone, 

warrant denial. In my estimation, it is more in keeping with the Congressional intent underlying such remedial measures to focus on the 

needs of the American family. 

The favorable exercise .of administrative discretion in behalf of a 

section 245 applicant whose prior conduct may have been less than 

acceptable does not necessarily constitute approval of such conduct. 

Good moral character is not a statutory prerequisite to the issuance of 

an immigrant 'Ilea or to entry into the United States. Neither is good 

moral character a statutory requirement for section 245 eligibility. We 

have held that in determining whether to exercise administrative dis636 
Interim Decision #2485 

cretion favorably in behalf of an eligible alien, we may properly consider 

his moral character as a relevant factor. The courts have sustained us in 

this view. It by no means follows, however, that the favorable exercise 

of discretion constitutes an endorsement of all the alien's prior conduct. 

If that were so, we could hardly grant relief to any alien whose prior 

conduct we consider immoral or otherwise improper. 

In granting discretionary relief to an eligible alien who has otherwise 

erred, we do so despite his transgression. Far from approving his 

misconduct, our grant of relief is a discretionary determination that 

there are factors present which, on balance, warrant forebearance even 

in the face of the adverse factors. That was the consideration underlying 

the rule we enunciated in Matter of Arai, supra, which I have underscored in the excerpt quoted above. I think that was a good rule and that 

it is a mistake to recede from it in favor of the vague and illusory 

standard that the case be "meritorious." 

The respondent is living with and supporting his United States citizen 

wife. This was not a contrived, last-minute relationship. The respondent 

and his wife met shortly after his arrival in 1970 and were married on 

March 18, 1973, shortly after his divorce from his first wife. The bonafides of the marriage is not disputed. Respondent is contributing $150 a 

month for the support of his children and former wife in the Philippines. 

If he were outside the United States now, he could readily obtain an 

immigrant visa and return to the United States for permanent residence, since an immigrant visa is immediately available to him. Thus, at 

a minimum, the net effect of denying section 245 relief will be to require 

the expenditure of funds needed for a round trip to the Philippines and 

for the respondent's maintenance there pending issuance of the visa. 

With stated exceptions not here applicable, section 245 was designed to 

obviate the need for such departure and return by an alien to whom a 

visa is thus readily available. The respondent's departure will disrupt, 

temporarily at least, his marriage to a United States citizen and will cost 

much money. It will not, in any event, restore him to his family in the 

Philippines. Such a harsh result is not required to vindicate the integrity of our visa-issuing process. 

The Board today not only reestablishes the vague pre-Arai standards 

but asserts a new and regressive notion: "The provisions of the Immigration and Nationality Act are supposed to favor the reuniting of 

families." (Opinion, p. 6; emphasis in original). This novel hypothesis, 

with its emphasis on reuniting, downgrades the notion that the immigration laws are also intent on uniting (i.e., not separating) existing 

family units. The implication is that Congress was concerned only with 

relief for aliens abroad who already had an American family member 

(i.e., reuniting an already-existing family) and not with aliens already 

here whose American family member was acquired after entry. The 

637 
Interim Decision #2485 

cases do not support this thesis. See, e.g., INS v. Errico, 385 U.S. 214 

(1966). The statute there involved was liberally construed in light of the 

Congressional policy of uniting families. It is interesting to note that 

both aliens there involved acquired their American families after entry. 

The statutory provision there involved, section 241(f) of the Act, is not 

discretionary but mandatory. It bars the deportation of aliens who 

obtained visas or entry by fraud if they have the necessary familial ties 

to American citizens or legally resident aliens. Can it be imagined that 

Congress intended to be less generous in the case of an American citizen 

whose alien spouse already has visa eligibility? 

Congress has indicated its desire to keep family units together by 

allowing otlerwise ineligible aliens to enter or remain in the United 

States with close relatives who are citizens or resident aliens. The 

Board now twists this beneficient policy into one that results in the 

denial of relief to eligible aliens in order to force them to join (or to 

discourage them from leaving) their family members abroad. Whatever 

dubious validity such a policy might have in cases where the eligible 

alien is still free to rejoin his family members abroad, it can have no 

justification in a situation such as the present one, where the family tie 

abroad has 'seen completely severed and the alien is now part of a bona 

fide American family unit. I find it hard to believe that Congress 

intended the immigration laws to be enforced in such a way as to break 

up the American family unit out of compassion for the disrupted foreign 

family unit, especially when it is clear, in a realistic sense, that the 

foreign family unit cannot again be made whole. Such a result is destructive. It injures the American citizen without at the same time helping 

the disrupted family abroad. Congress could never have intended such a 

result. 

For the ±bregoing reasons, I would sustain the appeal and grant 

respondent's application for adjustment under section 245. 

Louisa Wilson, Member, Dissenting! 

I concur in the opinion of the Chairman and would sustain the appeal 

and grant the respondent's application for adjustment of status under 

section 245 of the Immigration and Nationality Act. 

BEFORE THE BOARD 

(October 31, 1974) 

The Board being evenly divided as to the nature of the order to be 

entered on the Service's motion, the motion will be denied without 

opinion. The Chairman believes that the case should be referred to the 

Attorney General for review under 8 CFR 3.1(h)(ii). 

ORDER: The motion is denied. 

638 
Interim Decision #2485 

Further order: The record is referred to the Attorney General for 

review pursuant to 8 CFR 3.1(h)(ii). 

BEFORE THE ATTORNEY GENERAL 

(March 10, 1976) 

This matter was referred to me for review pursuant to 8 CFR § 

2.1(h)(ii)(1975) by the then Chairman of the Board of Immigration 

Appeals. In the proceedings below, respondent was found to have 

overstayed his nonimmigrant visitor's visa and, accordingly, -to be 

deportable under Section 241(a)(2) of the Immigration and Nationality 

Act (hereinafter referred to as the "Act"), 8 U.S.C. § 1251(a)(2). He was 

granted permission by the immigration judge to depart voluntarily from 

the United States in lieu of deportation. During his hearing before the 

immigration judge, respondent submitted an - application under Section 

245 of the Act, 8 U.S.C. § 1255, for adjustment of his status to that of an 

alien lawfully admitted for permanent residence based upon his marriage to an American citizen. That application was denied as a matter of 

discretion. The Board of Immigration Appeals unanimously agreed that 

respondent was deportable and, in a divided decision, affirmed the 

immigration judge's denial of Section 245 relief: In the event respondent 

failed to depart when and as provided, the Board ordered him deported _ The respondent, Pedro Calija Blas, is a 41-year-old male citizen of the 

Philippines. He was admitted to the United States as a nonimmigrant 

visitor on or about September 21, 1970. The length of stay proposed in 

his visa application was thirty-five days. On November 13, 1972, respondent was granted the privilege of departing voluntarily from the 

United States on or before November 28, 1972, without the issuance of 

an order to show cause, but failed to depart within the specified time. 

When respondent came to the United States, he left behind in the 

Philippines a wife and four minor children. He and his wife had had 

various differences and, before leaving the Philippines; he decided to 

obtain a divorce in the United States (Tr. at 11, 18, 19, 20), there being 

no provision for divorce in the Philippines. He further hoped to remarry 

in the United States following his divorce.and to remain in this country 

(Tr. at 19). 

On his arrival, respondent stayed with his adoptive parents, United 

States citizens, who had adopted him in the Philippines when he was a 

year and a half old. The deportation hearing developed that he had 

communicated with them _prior to coming to the United States with a 

view to having them submit a petition for his permanent residence (Tr. 

at 18, 20, 22). Although the record is unclear, it appears that they did 

file a petition to accord him immediate relative status which was approved on May 31, 1972. This petition, however, appears never to have 

639 
Interim Decision #2485 

matured into adjustment to permanent resident status,' and because of 

disagreement growing out of his upcoming divorce and remarriage, his 

adoptive parents subsequently withdrew their petition, and approval 

was revoked cn November 8, 1972. 

A few weeks after arrival, respondent met Rufina Agcaoili, a native 

of the Philipp ines, who was then a permanent resident and is now a 

citizen of the United States. She became his "girl friend." In early 1973, -

respondent ob.:ained a divorce from his wife in Reno, Nevada. On March 

18, 1973, respondent and Rufina were married. The bona fides of that 

marriage is nct in question (Tr. at 35). Respondent's present wife has 

filed an immediate relative visa petition in his behalf, and that petition 

has been approved. 

When he applied for his visitor's visa, respondent stated that the 

purpose of his visit was simply a "pleasure trip." He gave no indication 

of his intention to obtain a United States divorce while here, nor of his 

intention to visit his adoptive parents. He stated in his application that 

his "parents" were not in the United States, and that he was employed 

as a "Supervisor" by Starlite-Philippines, Inc. in Manila. While respondent's natural parents were not in the United States, his adoptive 

parents, as noted above, were, and he intended to visit them. Furthermore, the record reveals that while respondent did contract work for 

Starlite at theta, he worked a regular eight -hour day as a draftsman for 

the Mitsui Corporation. While none of these facts, if revealed, would 

legally have barred his entry into the United States as a visitor, his 

misrepresentations taken together created the impression that his ties 

to the Philippines were significantly stronger than they were in fact. 

Inasmuch as those ties would bolster the likelihood that respondent 

would leave the United States and return to the Philippines when his 

visa expired, Lis failure to disclose fully the facts relating to his background and intentions may have enhanced the likelihood that a nonimmigrant visa would be issued. 

The omissions discussed above, my view of the quality of which will 

be elaborated upon infra, are serious when viewed in light of the 

totality of the circumstances of this case. However I conclude that they 

do not amount to fraud or willful misrepresentation of a material fact so 

as to preclude eligibility for a. visa under Section 212(a)(19) of the Act, 8 

U.S.C. 1182(a)(19). See Matter of 3— and B—C—, 9 I. & N. Dee. 436 

(A.G. 1961). Therefore, I find respondent eligible for adjustment of 

status under Section 245. 

While respondent meets the statutory requirements for adjustment of 

status, the immigration judge, and the Board on appeal, denied that 

The Board of 1:mmigration Appeals found that during the times here pertinent the 

fourth preference quota for the Philippines into which the petition of his step-parents put 

respondent was oversubscribed. 

640 
Interim Decision #2485 

relief in the exercise of administrative discretion. The appropriateness 

of the Board's decision is now before me. 

The Board has held that Section 245 does not contemplate- 

. . . that all aliens who meet the required legal standards will be granted adjustment of 

status to that of a permanent resident since the grant of an application for adjustment of 

status is a matter of discretion and of administrative grace, not mere eligil3ility; 

discretion must be exercised by the Attorney General even though statutory prerequisites have been met. 

Matter of Ortiz Prieto, 11 I. & N. Dec. 317 (BIA 1965); see Santos V. 

INS, 375 F.2d 262 (C.A. 9, 1967). Discretion does not, however, imply a 

decision without standards or that standards perceived as generally 

applicable should remain the private beacon of the decision-maker. 

Rather when a balance of positive and adverse factors can be struck in 

general terms which, while retaining flexibility, provides both a 

touchstone for future decision-making and a focus for future argument 

by parties involved, such a determination should be expressed, disseminated, and maintained unless and until subsequently shown to be 

unworkable or unjust. See Sofa,er, Judicial Control of Informal Discretionary Adjudication and Enforcement, 72 Colum. L. Rev. 129p (1972); 

Roberts, The Exercise of Administrative Discretion Under the Immigration Laws, 13 San Diego L. Rev. 144 (1975); Davis, Administrative 

Law Taut (1972) Ch. 4. Such guidelines were advanced by the Board 

with respect, to Section 245 petitions in Matter of Arai, 13 I. & N. Dec. 

494 (BIA 1970): 

It is difficult and probably inadvisable to set up restrictive guide lines for the exercise 

of discretion. Problems which may arise in applications for adjustment of status must of 

necessity be resolved on, an individual basis. Where adverse factors are present in a 

given application, it may be necessary for the applicant to offset these by a showing of 

unusual or even outstanding equities. Generally, favorable factors Such as family ties, 

hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence 

of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion. 

Procedurally, this statement by the Board does not establish rigid rules 

which deny to immigration judges the flexibility necessary to . carry out 

their duty to analyze sensitively the competing factors in each particular 

case. It does, however, call for an explanation when certain considerations which would ordinarily be' regarded as significant are not 

dispositive. In requiring such an explanation, the Arai standard 

adopted by the Board attempts to move toward greater equity in the 

exercise of discretionary adjustment authority. 

Substantively, with regard to the spousal relation at issue here, the 

standard is consistent with the special solicitude which the courts, in 

other contexts, have found appropriate in treating marital affairs. Cf. 

Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Loving v. Virginia, 

641 
Interim Decision #2485 

388 U.S. 1, 12 (1967). Likewise Congress has indicated that in the area 

of immigration law, close family ties are to be accorded special significance. See Sections 201, 203, 212(i), 241(f) of the Act, 8 U.S.C. §§ 1151, 

1153, 1182(i), 1251(f). Although adjustment is not necessarily available 

on a simple showing of eligibility, that showing, particularly where 

eligibility carries with it its own strong equities, as with immediate 

relative status, can have a positive influence on the exercise of discretion and in the absence of adverse circumstances should prevail. 2 

Although an application for adjustment based on immediate relative 

status is thus initially appealing, the quality of the case presented can be 

undercut. Most damaging, of course, is the presence of factors raising 

doubts as to the bona fides of the underlying relationship between the 

alien and the citizen. No substantial factors of this nature appear in this 

case. The record is as assessed by the immigration judge: 

From what I can see of this case, the marriage is apparently a bona fide one. In that 

respect it *lifers from a number that I've had. I believe we have no cause at least to 

suspect that the marriage is not a bona fide one. 

(Tr. at 35). 

The immigration judge and a majority of the Board, however, have 

advanced two other policy considerations believed by both to outweigh 

any equities favoring preservation of respondent's present marriage 

through adjustinent of his status. The record does indicate that respondent entered the United States with the intention of divorcing his wife 

who remained in the Philippines. It also indicates that he came to this 

country harbouring hopes that arrangements could be made which 

would allow him legally to stay. Specifically, he hoped that either remarriage to an American citizen or an adjustment petition filed by his 

adoptive parents would lead to permanent residence (Tr. at 19-20). The 

immigration judge and the majority of the Board found that in pursuing 

his plans, respondent did not reveal relevant facts to the American 

Consul at the time of his visa application. The judge and a majority of 

the Board were of the opinion that to grant adjustment under these 

circumstances would be to condone fraud in the visa process and to 

promote the abandonment of a foreign spouse -and children. 

Primary emphasis in both the trial judge's opinion and in the prevailing appellate opinion is placed upon the view that adjustment on the 

facts of this case would constitute unjustified complicity in the abandonment of respondent's former wife and children. But a denial of 

adjustment will not restore Blas to his family. He is now legally divorced. He has been away from the Philippines for more than four 

2 As pointed out in Chairman Roberts' dissent in this case, the equities in preserving a 

current bona fide marriage are no less simply because that marriage occurred after entry 

into the United States. 

642 
Interim Decision #2485 

years. The foreign family unit cannot again be made whole, and responsibility for precipitation of its dissolution is by no means clear. In sum, 

this record does not support denial of adjustment for the purpose of 

vindicating respondent's former marriage. 3 

Although both the immigration judge and a majority of the appellate 

board relied primarily on the effect of adjustment upon the foreign 

marriage, both made findings concerning, and offered as a subsidiary 

ground for denial of adjustment, respondent's misleading responses in 

seeking his initial visitor's visa. These factual distortions, noted above, 

served, and appear to have been intended to serve, to mislead immigration officials concerning the true nature and purpose of respondent's 

desire to enter the United States. I conclude therefore that those 

responses, in the context presented by this case, warrant denial of 

respondent's Section 245_ application. 

In reaching this conclusion, I am mindful of the general balance struck 

by Congress in the deportation context between the equities of immediate relative status and the deleterious systemic consequences of 

condoning fraud in the procurement of entry documents. Section 241(f) 

of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), states: 

The provisions of this section relating to the deportation of aliens within the United 

States on the ground that they were excludable at the time of entry as aliens who have 

sought to procure, or have procured visas or other documentation, or entry into the 

United States by fraud or misrepresentation shall not apply to an alien otherwise 

admissible at the time of entry who is the spouse, parent or a child of a United States 

citizen or of an alien lawfully admitted for permanent residence. 

While this provision offers no relief to those whose fraud concealed an 

independent substantive ground for deportation, it does waive deportation based on the act of fraud itself when after-acquired family ties are 

raised. Reid v. INS, 420 U.S. 619 (1975). 

Section 241(f) is not, of course, specifically applicable to Section 245 

adjustment determinations. Furthermore, on the peculiar facts of this 

case, it is my opinion that it does not control the exercise of my discretion. Here the misleading omissions which occurred, while not rising to 

the level of actual fraud, were in furtherance of a concerted plan calculated to produce the equity which respondent now asserts should 

support favorable exercise of administrative discretion—to wit, an 

American marriage. Such conscious construction of an equity must in 

the nature of things dilute the quality of that equity and abate its ability 

to counterbalance the adverse impact of actions committed to produce 

it. Although family ties will ordinarily result in favorable exercise of 

Section 245 administrative discretion, it is my opinion that they neither 

3As all five members of the Board of Immigration Appeals were quick to point out, only 

the facts of this case are relevant to its decision. Generalizations concerning any group of 

aliens or judgments formed on the basis of factsin other cases are altogether out of place. 

643 
Interim Decision #2485 

must nor should do so where it appears that the alien has engaged in a 

course of deception designed to produce those very ties. Since this case 

presents no alternative affirmative equities sufficient to overcome the 

' adverse impact of respondent's misrepresentations in applying for entry 

to this country, the denial of respondent's Section 245 application was 

appropriate. 

For the reasons stated above, the order of the Board of Immigration 

Appeals denying respondent's application for permanent resident 

status, permitting respondent to depart voluntarily from the United 

States, and, should respondent fail to. so depart, providing for his 

deportation :s affirmed.