Interim Decision #2810 

MATTER OF LASIKE 

In Deportation Proceedings 

A-21316510 

A-21316512 

A-21317207 

Decided by Board July 30, 1980 

(I) To be eligible for permanent residence as a special immigrant minister under section 

101(a)(27)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C)(i), the 

alien must establish that he is an immigrant who> continuously for at least 2 years 

immediately preceding the time of his application for admission to the. United States 

was a minister and who seeks to enter the United States solely for the purpose of 

carrying on the vocation of minister of a religious denomination, and whose services 

are needed by such religious denomination having a bona fide organization in the 

United States. 

(2) A "renewed" application for adjustment of status in deportation.proceedings will be 

treated as a new application if the alien was statutorily ineligible for adjustment of 

status based on the circumstances as they existed when, the application was originally 

denied by the District Director and if the present application is based on circumstances which have occurred since the denial. Matter of Huang, Interim Decision 2616 

(BIA 1978), reaffirmed. 

(3) Where the documents submitted in support of an application for adjustment of 

status established that the respondent entered the United States with a preconceived 

intent to remain, his application can be denied in the exercise of discretion. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrants—remained 

longer than permitted 

By: Milhollan, Chairman, Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated July 13, 1978, an immigration judge found the 

respondents deportable as charged, denied the respondents' applications for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but granted them the privilege 

of voluntary departure in lieu of deportation. The respondents have 

appealed. The appeals will be dismissed.' 

' The applications of the two children are based on the application for adjustment of 
Interim Decision #2810 

The principal respondent is a 48-year-old married male alien, a 

native and citizen of Tonga. He was admitted to the United States on 

July 11, 1974, as a nonimmigrant visitor authorized to remain until 

October 10, 1974. On October 8, 1974, the respondent filed an application To Extend Time of Temporary Stay, Form 1-539. On the application, the respondent stated that the reason for the requested extension 

was "fflo continue in visitor status, to mingle with friends and church 

members from Tonga living here [in the United States]." He further 

indicated that he had not been employed or engaged in business in the 

United States. 

On May 15, 1975, the respondent submitted his application for adjustment of status to the District Director. To be eligible for 

permanent resident status as a special immigrant, as a minister under 

section 101(a)(27)(C)(i) of the Act, 8 U.S.C. 1101(a)(27)(C)(i), the alien 

must establish that he is an immigrant who continuously for at least 

two years immediately preceding the time of his application for admission to the United States has been, and who seeks to enter the United 

States solely for the purpose of carrying on the vocation of minister of 

a religious denomination, and whose services are needed by such 

religious denomination having a bona Me organization in the United 

States. . 

On September 18, 1976, the application was denied. The District 

Director denied the respondent's application for adjustment of status 

on the ground that he did not meet the 2-year requirement and that 

when he entered the United States as a visitor he had a preconceived 

intent to remain permanently. The respondent was granted voluntary 

departure on or before October 1, 1976, without the issuance of an 

Order to Show Cause. He failed to depart. An Order to Show Cause was 

issued November 15, 1977. At the deportation proceedings the respondent renewed his application for adjustment of status. In support of his 

application, the respondent submitted the following documents: 

1) A letter dated March 2, 1974, from Tonga which recommended the respondent "for 

ministry and practical observations of Gospel ministries overseas." (Emphasis 

added.) 

2) A letter dated April 12, 1975, which stated that the respondent had been a member 

of the Assemblies of Tonga since 1970, that he became a lay preacher in 1971, that he 

served as a deacon and that in 1973 he served as a pastor of the church be built. 

3) A Christian Worker's Certificate which authorized him to exhort and conduct 

religious services. 

4) A license to preach issued October 30, 1975, issued at Santa Cruz, California. 

5) A letter dated November 13, 1974, from the Tonga tradition department stating the 

income of the respondent. 

0) A letter dated October 30, 1974, signed by Robert Pirtle, Assistant District Superstatus filed by their father, the principal respondent. Therefore, this appeal will concern 

itself with the qualification of the father for the benefits sought. 

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Interim Decision #2810 

intendent, written to Roy Lange, stating that the salary of the respondent is $700 a 

month. 

7) A letter dated May 8, 1975, signed by Robert Pirtle stating that the respondent was 

appointed pastor of the church in Redwood City 071 October 7. 1974. 

8) A letter dated November 17, 1975, signed by Robert Pirtle which states that the 

respondent and his wife have pastored the Tongan Assemblies of God church, first in 

Belmont and then in Redwood City since their arrival. (Emphasis added.) 

The immigration judge found that the District Director correctly 

denied the respondent's application for adjustment of status filed on 

May 15, 1975. None of the evidence presented to the District Director 

established that the respondent had been carrying on the vocation of 

minister of a religious denomination for 2 years prior to the denial of 

his application by the District Director. Based on this, the immigration judge found that since the respondent was statutorily ineligible 

for adjustment of status when he originally filed the application with 

the District Director that he would treat the renewed application in 

the deportation proceedings as a new application. The immigration 

judge explained his reason for doing this as follows: 

[Elver since immigration judge's [sic] were given the authority in 1962 to pass on 

applications for permanent resident status, where an alien's application was denied by 

a District Director and the ease came before me, his decision has, in effect, been 

reviewed by me. If on the same evidence I thought that the application had been 

erroneously denied by the District. Director, I granted the application, nunc pro tune, 

the same as a United States District Court would have done if prior to 1952 it had come 

before the Court as a consequence of a declaratory judgment action. However, if the 

respondent became eligible for relief only after the District Director denied his 

application, I treated the application as a new application. It seemed to me that this 

was a fair way to handle such applications because an alien should not be penalized by 

reason of any errors of the District Director. On the other hand he should not gain an 

advantage merely because he had filed an application for relief for which he was not 

then eligible. 

Based on the immigration judge's determination that the renewed 

application filed January 10, 1978, would be treated as a new application, he found the respondent statutorily ineligible for adjustment of 

status because he continued in unauthorized employment after January 1, 1977 2, and prior to the filing of the new application for adjustment of status. 

On appeal, the respondent, through counsel, contends that the immigration judge erred in finding that he was not a minister of a 

religious denomination prior to his submission of the application for 

adjustment of status and that the immigration judge erred in finding 

him ineligible for adjustment of status under section 245(c) of the Act. 

Based on the evidence above, we find that the respondent's applicaThe respondent made no showing that his employment as a minister was authorized 

by the Service. 

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Interim Decision #2810 

tion for adjustment of status should be denied because he was 

statutorily ineligible for adjustment of status at the time he originally 

filed the application in that he did not establish at least 2 years of 

experience as a minister prior to filing the application, and as a matter 

of discretion based on a preconceived intent to remain permanently in 

the United States. 

We concur in the decision of the immigration judge that the respondent was statutorily ineligible for adjustment of status as a 

special immigrant as a minister because he was not for the 2 years 

preceding the time of his original application for admission as a 

minister of a religious denomination. The evidence presented indicates 

that the respondent was a lay preacher who worked with the ministry 

of the youth prior to his entrance in the United States on July 11, 1974. 

On July 25, 1974, 14 days after his arrival, he applied for "ministerial 

recognition" and on December 17, 1974, he was granted a "Christian 

Worker's Certificate" which entitled him to exhort and conduct religious services. On October 30, 1975, the respondent was issued a 

"license to preach." In December of 1977, the respondent became an 

ordained minister of the church. Further, we concur in the immigration judge's analysis that since the District Director correctly denied 

the respondent's adjustment of status application filed on May 15, 

1975, that the renewed application in the deportation proceedings held 

on January 10, 1978, should be treated as a new application. We further 

agree that this analysis is consistent with our decision in Matter of 

Huang, supra, we stated that an application for adjustment of status 

which had been denied by the District Director and later renewed in 

the deportation proceedings based on the same facts would be reviewed 

according to the circumstances as they existed when the application 

was originally filed with the District Director. In the present case, it is 

the qualifications of the respondent as a minister which are the bases 

of the immigration judge's affirmance of the District Director's denial 

of his adjustment of status application. 3 

Even if the respondent was statutorily eligible for adjustment of 

status under section 245 of the Act, the application would be denied as 

a matter of discretion. The granting of adjustment of status is a form 

of discretionary relief, which is not an automatic act conditioned solely 

upon a showing of statutory eligibility. It is a privilege and a matter of 

grace, accorded to a person where that person has established that he 

is worthy of it. Matter of Tureotte,12I&N Dee. 206 (BIA 1967). It is the 

' We do not find it necessary to reach the question of whether the applicant is 

presently barred by section 245(c) of the Act for adjustment of status, since adjustment 

of status will still be denied as a matter of discretion based on the respondent's 

preconceived intent to remain permanently in the United States even though it now 

appears he has the requisite 2 years experience. 

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Interim Decision #2810 

respondent's burden to establish that he is not only eligible for any 

requested benefit or privilege, but also that it should be granted in the 

exercise of discretion. 

In a letter dated March 2, 1974, which was prior to the respondent's 

entry into the United States, the writer recommends the respondent 

"for ministry and practical observations of Gospel ministries overseas." This letter in conjunction with the filing by the applicant of an 

application for "ministerial recognition" only 11 days after his arrival 

indicates a preconceived intent on the part of the respondent to remain 

permanently in the United States. Further, in a letter from the Assistant District Superintendent for the Assemblies of God, he states that 

the respondent was appointed pastor of the Tongan Assembly of God 

Church in Redwood City on October 7, 1974. On October 8, 1974, the 

respondent in his "Application to Extend Time of Temporary Stay" 

makes no mention of the fact that he was employed asr a pastor at $700 

a month nor did he mention that he had pastored in Belmont since his 

arrival in the United States. The respondent stated that his reasons for 

requesting an extension were "to continue in visitor status, to mingle 

with friends and church members from Tonga living here." 

Based on the above, we find that the respondent's application for 

adjustment of status should be denied due to statutory ineligibility 

and as a matter of discretion based on his preconceived intent to 

remain in the United States. Accordingly, the appeal of the respondent 

will be dismissed. 

ORDER: The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order, 

the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order; and in the event of 

failure so to depart, the respondent shall be deported as provided in the 

immigration judge's order.