Interim Decision 112765 

MATTER OF CARBAJAL 

Application for Permission to Reapply for Admission 

A-22870733 

Decided by Commissioner October 26, 1978 

(1) This case involves an application for permission to reapply for admission under 

section 212(2)(17) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(17), by an 

applicant who is the beneficiary of an approved visa petition filed under section 

203(a)(6) of the Act, 8 U.S.C. 1153(a)(6), by a United States employer. This employer is 

in need of the applicant's services and is suffering hardship due to inability to fill the 

job which has been offered the applicant. 

(2) Applicant has been in the United States unlawfully several times. Each time he came 

to Service attention, he was granted the privilege of voluntary departure under section 

244(e) of the Act, 8 U.S.C. 1254(e). Since a finding of good moral character is required 

for a grant of voluntary departure, this record does not sustain a finding that these 

immigration violations rendered applicant a person of bad moral character. 

(8) Applicant's four occasions of illegal entry are not to be condoned. However, given the 

need for applicant's services in the United States and his eligibility for the issuance of 

an immigrant visa, along with the other favorable and unfavorable factors, the 

interests of all parties concerned would be best served if the application were granted. 

ON BEHALF or PETITIONER: Edward Weinstein, Esquire 

2305 Las Vegas Boulevard, South 

Las Vegas, Nevada 89104 

This matter is before the Commissioner on certification an provided 

by 8 C.F.R. 1013.4, for review of the Regional Commissioner's decision to 

dismiss the appeal from the District Director's decision to deny the 

applieation far permission to reapply for admission into the United 

States after deportation or removal. 

The applicant is a 27-year-old native and citizen of Mexico. The 

record shows that the applicant is married to a native and citizen of 

Mexico, and has two children, both born in Mexico. The applicant last 

entered the United States on or about April 23, 1975, near Columbus, 

New Mexico, by evading inspection. He was found by immigration 

officers employed on a ranch near Pahrump, Nevada, on May 19, 1976. 

The applicant, his spouse, or children have not been admitted for 

permanent residence to the United States. He admitted that he had 

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illegally entered the United States on three previous occasions, and 

had been granted voluntary departure prior to the institution of deportation proceedings on each of the previous occasions. The last 

previous voluntary departure occurred at Dallas, Texas, in 1971. The 

applicant was again granted voluntary departure prior to the institution of deportation proceedings and was granted until June 1976 to 

depart. The applicant, through counsel, notified this Service on June 9, 

1976, that he did not intend to depart from the United States voluntarily, and an Order to Show Cause why he should not be deported was 

issued on June 9, 1976, by the District Director at San Francisco. The 

hearing was set for June 16, 1976. The immigration judge found that 

upon the basis of the applicant's admissions, the applicant was deportable. The applicant then made application for voluntary departure, 

and the judge entered an order granting the applicant until September 

16, 1976, to depart the United States voluntarily; and further ordered 

that should the applicant fail to depart when and as required, the order 

of voluntary departure would be withdrawn and deportation would be 

effected. On September 10, 1970, the applicant, through counsel, petitioned the Ninth Circuit of Appeals for review of the deportation 

proceedings. On January 3, 1977, this petition was dismissed on a 

Service motion that the court lacked jurisdiction since the applicant 

had not exhausted all administrative appeals. The applicant was then 

deported to Mexico on February 3, 1977. 

In support of his application, the applicant calls attention to the fact 

that he is now eligible to receive a permanent resident visa by reason 

of an approved sixth-preference petition submitted in his behalf by 

Theodore Blosser. The petition is supported by a labor certification 

issued by the Secretary of Labor which certifies there are no United 

States residents available to fill the job which Mr. Blosser is offering, 

In addition to establishing a need for the services of the applicant, Mr. 

Blosser, in a separate letter of supplication to this Service, points out 

the hardship that is occurring to him because of his inability to find a 

qualified person to fill the position which he has offered. 

The Regional Commissioner, in dismissing the applicant's appeal 

from the District Director's order denying the instant application, 

cited Matter of Tin, 14 I&N Dec. 371 (BIA 1973), and found that the 

adverse factors outweighed the favorable factors. He opined that the 

record of previous immigration violations established that the applicant could not establish good moral character or proper respect for law 

and order, and that these factors outweighed the need for the applicant's services and the hardship encountered by Mr. Blosser. 

The Board of Immigration Appeals addressed the matter of immigration violations with regard to the establishment of good moral 

character in Matter of T—, 1 UN Dec. 158 (BIA 1941). In Matter of T—, 

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id, the Board held that three deportations and two convictions for 

reentry after deportation did not substantiate a finding of bad moral 

character, since there appeared to be no moral turpitude in the conduct 

and attitude of the respondent, and nothing evincing a calloused 

conscience. 

In the instant case, we have a far less extensive record compared to 

that in Matter of 2'—, id. In addition, we find the applicant has, on each 

occasion he came to Service attention, been granted the privilege of 

volUntary departure, which requires a finding of good moral character. 

Therefore, I conclude that the record does not sustain a finding that the 

applicant is a person of bad moral character. 

The Regional Commissioner's finding that the applicant has failed to 

establish that he has proper respect for law and order is also based on 

the four illegal entries effected by the applicant. The record is silent as 

to any other infractions of law, and I will assume that in all other 

aspects, the applicant does appear to abide by the law. The applicant's 

last illegal entry into the United States occurred 4 years after having 

been granted voluntary departure in 1971. The record is silent as to the 

factors that finally motivated the applicant to enter the United States 

illegally. 

I will not condone these four occasions of illegal entry by the applicant; however, I find that when balanced against the need for the 

applicant's services in the United States and his current eligibility for 

the issuance of an immigrant visa, as well as all other factors favorable 

and unfavorable not specifically mentioned, that the interests of all 

parties concerned would best be served if permission to reapply after 

deportation were granted in the instant case. 

ORDER, The order of the District Director denying the application for permission to reapply after deportation and the Regional 

Commissioner's Order dismissing the appeal from that order are set 

aside, and the application is hereby granted. 

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