Interim Decision #1938 

MATTER OF FUENTES-BLANCO 

In Deportation Proceedings 

A-14196901 

Decided by Board December 27, 1968 

Adjustment of status under section 245, Immigration and Nationality Act, 

as amended, is denied as a matter of discretion to applicant who entered 

this country with the preconceived intent to remain permanently, having 

withdrawn all of her savings when she came to the United States, having 

entered with a visitor's visa obtained from the American Consul in Mexico 

City upon concealment that she had previously been denied a visitor's visa 

by an American Consul in Chile, having traveled to the United States 

from Mexico on a one-way ticket, and within ten days after arrival here 

having applied for adjustment of status, having in her possession at entry 

her birth certificate and a certificate of good conduct, which are needed in 

support of an adjustment application. 

CHARGE: 

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

ON BEHALF OF RESPONDENT: Lloyd A. Tasoff, Esquire 

408 South Spring Street 

Los Angeles, California 90013 

(Brief filed) 

The proceedings are before us on appeal from the decision of 

the special inquiry officer who found respondent deportable as 

charged, denied her applidation for adjustment of status to that 

of a permanent resident under section 245 of the Immigration 

and Nationality Act, and granted her the privilege of voluntary 

departure with an alternate order of deportation to Chile in the 

event she did not depart as and when directed. 

The respondent is a 35-year-old single female alien, a native 

and citizen of Chile, who entered the United States as a visitor 

for pleasure on or about November 14, 1964. She remained longer 

than permitted and in October 1967 the District Director, Los 

Angeles, granted her voluntary departure to January 11, 1967 in 

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Interim Decision * 1938 

lieu of the institution of deportation proceedings. She did not 

leave the United States. 

The respondent admits the allegations of fact contained in the 

order to show cause and she concedes deportability. The sole 

question before us in this appeal is whether she is entitled to 

have her status adjusted to that of a permanent resident under 

section 245 of the Act. The special inquiry officer found that she 

was statutorily eligible for this relief but that it was denied as a 

matter of discretion. 

The special inquiry officer found that when she entered the 

United States on or about November 14, 1964, being admitted on 

a visitor's visa obtained by her from the American consul in Mexico City on or about November 13, 1964, she had the preconceived 

intent of coming to the United States to remain here permanently 

as an inunigrant. Thus, by this device of entering as a visitor she 

avoided having to meet the various qualifications for obtaining an 

immigrant visa. This being the case she was not entitled to the 

favorable exercise of the Attorney General's administrative discretion. With this conclusion we are in agreement. 

The respondent's application for adjustment of status under 

section 245 of the Act was filed on December 5, 1964. Although 

natives of Western Hemisphere countries are ineligible to adjust 

their status in the United States after December 1, 1965 by reason of section 13 of the Act of October 8, 1965 (P.L. 89-236), 

section 3 of the Act of November 2, 1966 (P.L. 89-732), allows 

consideration of an application by a Western Hemisphere native 

if it was filed prior to December 1, 1965. Thus, respondent is eligible to have her application for adjustment considered at this 

time. 

When the special inquiry officer denied the application for adjustment on January 18, 1968, that was the third time that the 

application had been rejected. It was originally denied by the District Director on July 27, 1965, and then after the proceedings 

were reopened upon motion and further consideration given to 

the application, it was again denied by the District Director on 

January 27, 1967. 

The special inquiry officer has succinctly set forth in his decision the background facts relative to the respondent's entry into 

the United States and what transpired thereafter, and it is not 

necessary for us to repeat in detail these facts. However, we will 

state that the record shows that respondent applied for a visitor's 

visa in Santiago, Chile, which was denied by the American consul 

there on October 19, 1964 on the basis that she failed to present 

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Interim Decision #1938 

proof that she was a bona fide tourist. She then purchased a 

round-trip airline ticket from Chile to Mexico and arrived in 

Mexico City during the first week in November 1964. Shortly 

thereafter, less than a month after having been denied a visitor's 

visa in Chile, she obtained such a visa from the American consul 

in Mexico City. She testified that she told the consul of the previous denial (Tr. of hearing p. 16). However, the consul advised 

the Immigration and Naturalization Service on December 21, 

1965 that there was no evidence of record that the respondent 

had advised the consular officer at the time of interview that she 

had been denied a nonimmigrant visa in Santiago, Chile. He 

stated that the consular officer at the post would normally ask the 

applicant if he had ever been denied a visa in his home country, 

especially if he had just arrived (part of Ex. 4). 

In connection with her application for adjustment, respondent 

was interviewed by an immigrant inspector on February 22, 

1965, at which time, through an interpreter, she gave a sworn 

statement to the immigrant inspector (part of Ex. 4). The assertions contained in this sworn statement conflict with assertions 

made at the time of the deportation hearing regarding whether 

her intent when she entered the United States was to come here 

as a bona fide visitor or whether she intended to remain in the 

United States permanently. At the onset, counsel for respondent 

contends that it was improper and illegal to enter this sworn 

statement into the record because respondent was not informed 

of her right to have counsel at the time she gave it. However, pursuant to 8 CFR 2422.14(c), any oral or written statement previously made by an alien during an investigation may be received 

in evidence by the special inquiry officer. 1A statement made by 

an alien voluntarily and without counsel is admissible in deportation proceedings.2Failure to advise a respondent of the right to 

counsel at the time a preliminary sworn statement was voluntarily made does not render such statement inadmissible in evidence 

in deportation proceedings since, there is no right to counsel during the taking of a statement in the investigative stage.3Respondent testified (Tr. of hearing, pp. 34 & 35) that the sworn state1 Siting Hang Tsui v. Immigration and Naturalization Service, 389 F.2d 

994 (1968). 

2 Nozon. v. Immigration and Naturalization Service, 370 F.2d 865 (1965); 

Matter of Argyros, 11 I. & N. Dec. 585; Matter of Pang, 11 I. & N. Dec. 

213. 

Almon v. Immigration and Naturalization Service, supra; Matter of 

Steele, 12 I. & N. Dec. 302 (1967). 

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Interim Decision #1938 

ment given by her on February 23, 1965 was freely and 

voluntarily given. 

A careful reading of the sworn statement reveals that respondent hedged in many of her answers but that she finally admitted 

that at the time she came to the United States it was her intention to attempt to establish permanent residence (p. 5). This intention was denied by her at the deportation hearing. The special 

inquiry officer states in his decision (p. 8) that he did not believe 

that the respondent's belated self-serving clarifications offered 

during the hearing were credible, and he found that the respondent's testimony lacked candor and probity. The hearing officer enjoys an inestimable advantage of seeing and hearing the person 

testifying, and is in the best position to determine the accuracy, 

reliability and truthfulness of the testimony.* 

We find that within ten days after arriving in the United 

States the respondent executed (on November 24, 1964) an application for adjustment of status under section 245 of the Act 

(Form 1-485). She testified that this form was prepared by an 

immigration advisor, one Marie Lopez, and that an affidavit of 

support was executed by a husband and wife, citizens of the 

United States, on November 30, 1964. The application for adjustment was filed on December 5, 1964, It is to be noted that when 

the respondent traveled from Mexico City to Los Angeles she 

purchased only a one-way ticket, although she did testify that she 

intended to buy a return ticket in the United States. It is also to 

be noted that she applied for a visitor's visa to the United States 

in Mexico City after being there just a few days (p. 30 transcript 

of hearing). 

Respondent further testified that when she came to the United 

States she withdrew all of her savings and that she had about 

$800 on her person when she arrived (pp. 29, 32). When she entered the United States she had with her a birth certificate and a 

certificate of good conduct, which of course are needed in applying for adjustment of status. She stated that her brother, who is 

a police officer in Chile, told her that she should have these documents with her when she traveled. 

After a most careful consideration of the entire record, including the affidavit executed by respondent and the brief filed by 

counsel, we are of the opinion that this alien did come to the 

United States with a preconceived intent to remain permanently. 

We have held that even though a person is statutorily eligible for 

Todaro v. Pederson., 205 P. Supp. 612 (1961), arid 305 F.2d 377 (1962) , 

cert. denied 371 U.S. 891 (1962) ; see also Matter of 21—, 7 I. & N. Dee. 417. 

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Interim Decision #1938 

the benefits of section 245, it will generally be denied as a matter 

of discretion to one who comes to the United States with a preconceived intention to remain here permanently. 3 

We have further held that adjustment of status under section 

245 will be denied in the absence of particular equities. 6There are 

no particular equities in this case which would justify the favorable exercise of administrative discretion, especially where, as in 

this case, it is quite clear that the respondent did evade the normal visa issuing function of the Department of State. Also, respondent's entire family resides in Chile and she has no family or 

relatives of any kind in the United States. The courts have held 

on a number of occasions that lack of family ties in the United 

States is alone a sufficient reason to deny adjustment of status 

under section 245. 7 

We will affirm the decision of the special inquiry officer to deny 

adjustment of status as a matter of discretion. Accordingly, the 

appeal will be dismissed. 

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

hereby dismissed. 

8 1Ifatter of Garcia-Castillo, 10 I. & N. Dec. 516; Matter of Amities, 10 I. 

& N. Dec. '774; Matter of Tonga, 12 I. & N. Dec. 212; Matter of Muslemi, 

12 I. & N. Dec. 249. 

G Matter of Leger, 11 I. & N. Dec. 796; Matter of Ramirez, 12 L & N. 

Dec. 78. 

7 Kam Ng v. Pilliod, 279 F.2d 207 (1961), cert. denied 365 U.S. 860 

(1961); Santos v. Immigration and Naturalization Service, 375 F.2d 262 

(1967). 

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