Interim Decision #1696 

MATTER OF GARCIA-11E131DES 

In Deportation Proceedings 

A-13402252 

A-13423161-2 

Decided by Board February 16, 1967 

The determination as to whether an alien is entitled to classification as -a refugee pursuant to the provisions of section 203(a) (7), Immigration and Nationality Act, as amended by P.L. 80-230, lies solely within the authority of 

the District Director (8 OPR 245.4), from which determination no appeal lies; 

and once the District Director has made Such a determination, the special 

inquiry officer's consideration thereafter is properly directed only to the pertinent aspects of the application for adjustment of status to that of a permanent resident, as a matter of discretion. 

0/faltrin• 

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

(temporary visitor for pleasure)—Remained longer 

(all aliens). 

ON itETr ATVOr SzeroNDENT: ON Brzers or SEaVICE: 

'Ciro Malgtrasi, Esquire Irving A. Appleman 

Cafe Tetuan 200 Appellate Trial Attorney 

Apartado 2245 

San Juan, Puerto Rico 00903 

On March 11, 1966, the District Director approved applications filed 

by the adult respondents for classification as refugees, pursuant to 

section 203 (a) (7) of the Immigration and Nationality Act (8 U.S.C. 

1153). 

On April 11, 1966, the special inquiry officer, finding that it was not 

the Congressional intent to accord the respondents status as refugees, 

deemed it his obligation and duty to deny their applications for adjustment of status to that of permanent residents, as a matter of discretion, and did so. However, he did then grant their alternative requests for voluntary departure, with a. provision for their deportation 

on the above-stated grounds in the event of their failure to so depart. 

He then certified the case to this Board for final decision. 

On July 20, 1060, this Board remanded the caso to the special in75 

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Interim Decision #1696 

quiry officer for the purpose of affording him an opportunity to reconsider the respondents' applications for adjustment of status to 

that of permanent residents, on the merits. In so doing, we pointed out 

that the special inquiry officer lacked authority to review the respondents' applications for classification as refugees under section 203 (a) (7) 

of the Immigration and Nationality Act. 

Despite the foregoing decision of this Board, on remand the special 

inquiry officer again considered the question of whether the respondents were entitled to classification as refugees under section 203(a) 

(7) of the Immigration and Nationality Act, per langem et latera. On 

that occasion, however, it was his conclusion that they were entitled 

to such status. He also found that the respondents have established 

their eligibility for adjustment. of their status to that of permanent 

residents, and he thereupon granted such relief, He then directed that 

the proceedings be terminated but certified the case to this Board for 

final decision. 

These respondents constitute a family group consisting of a 50-

year-old husband and his 34-year-old wife, both natives and citizens of 

Spain, and their 7-year-old son, a native and citizen of Cuba, who may 

also have a valid claim to Spanish nationality. All the respondents were 

last admitted to the United States as nonimmigrant temporary visitors 

for pleasure, the adult male on November 20, 1961, and the other two 

respondentson June 29, 1962. All the respondents were authorized to 

remain iii the United Statei as visitors. until July 17, 1964, and they 

were thereafter given the privilege of departing from this country 

without the institution of deportation proceedings on or before November 6, 1965. They have; however, remained in this country since that 

date without authority. 

The foregoing establishes the deportability of the respondents, as 

charged. This has been conceded throughout the course of these 

proceedings and is unchallenged here. This aspect of the case, accordingly, needs no further discussion. 

The special inquiry officer has already granted these respondents the 

privilege of voluntary departure. Suffice it to say, in this connection, 

that the record before us supports said official's action in this respect. 

The special inquiry officer has also now granted the respondents' applications for adjustment of their status to that of permanent residents 

pursuant to section 245 of the Immigration and Nationality Act, as 

amended. His discursive opinion of December 2, 1966, contains rather 

meagre treatment of this aspect of their cases. However, our review of 

the record does support his action in this respect. Accordingly, his 

decision will be approved. 

Before entering an order to that effect, however, brief comment is 

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Interim Decision #1696 

required concerning the special inquiry officer's persistent efforts to 

review the District Director's decision to approve the respondents' 

applications for classification as refugees under section 208(a) (7) 

of the Immigration and Nationality Act. As we previously pointed out, 

this is a matter which the regulations (8 CFR 245.4) place solely within 

the authority of the District Director, as follows : 

* a * the determination as to ' whether an alien is entitled to the claimed 

preference status shall be made by the District Director ; no appeal shall lie from 

his determination. 

Once the District Director has exercised the authority delineated in the 

foregoing regulation in favor of an alien, the special inquiry officer's 

consideration thereafter is properly directed only to the requirements 

other than the availability of a quota number, including the question of 

whether the application for adjustment of the alien's status to that of a 

permanent resident should be granted, as a matter of discretion. 

ORDVII: It is ordered that" the special inquiry officer's decision of 

December 2, 1966, granting the applications of these respondents for 

adjustment of their status to that of permanent residents, and further 

directing that the proceedings in their cases be terminated, be and 

tiresome is hereby afritnied. 

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