MATTER or C—HIn SECTION 245 Proceedings 

A-11908700 

Decided by Regional Commissioner March 14, 1961 

Approved by Assistant Commissioner 

Adjustment of status—Section 245—Exclusion order does not bar eligibility 

when alien has been inspected and paroled—Alien's good faith as favorable 

element in exercising diecrotion. 

Native and citizen of Guatemala with unexpired visitor's visa who was inspected and paroled into the United States and, after special inquiry officer 

hearing, was ordered excluded as an Immigrant not in possession of proper 

entry documents meets eligibility requirements for adjustment of status 

under section 245 of the 1952 Act and merits favorable exercise of discretion upon findings that she was a bona fide nonimmigrant when she first 

obtained her visitor's visa from the U.S. Consul; that thereafter on two 

occasions when ate entered the United States she complied with the terms 

of her admission as a nonimmigrant and departed within the time authorized; and that at the time she last applied for admission she was acting in 

good faith, although under an erroneous assumption, and made no attempt 

to mislead the inspecting officer as to her intent to reside here permanently. 

BEFORE THE REGIONAL COMMISSIONER 

DISCUSSION: The applicant, a 22-year-old female, native and 

citizen of Guatemala, applied for admission into the United States 

as a nonimmigrant visitor for pleasure at New Orleans, Louisiana,, 

on June 23, 1960. She presented a valid passport and valid nonimmigrant visa but when inspected she failed to establish that she 

was admissible under the nonimmigrant classification contained in 

section 101(a) (15) [B-2]. She was ordered detained for hearing 

before a special inquiry officer and the District Director authorized her parole into the United States and permitted her to proceed to Chicago, Illinois. 

After the hearing, which was conducted in Chicago on July 1, 

and 7, 1960, the special inquiry officer found the applicant inadmissible to the United States under the provisions of section 212(a) 

(20) of the Immigration and Nationality Act on the ground that she 

was an immigrant not in possession of a valid unexpired immigrant 

visa as required by the Act. The special inquiry officer ordered that 

265 
she be excluded from the United States and be deported to the 

country from which she came. 

Before that order was executed the applicant applied for status 

as a permanent resident under the provisions of section 245, as 

amended by the Act of July 14, 1960. The District Director found 

that she was eligible for the status sought and granted the application. It is now before us on certification for review of that 

decision. 

An applicant for status as a permanent resident under the amended 

provisions of section 245 must establish that he was inspected and 

admitted or paroled into the United States, that he is eligible to 

receive an immigrant visa and is admissible to the United States 

or permanent residence, and that an immigrant visa is immediately 

available to him at the time his application is approved. The 

applicant also has the burden of establishing that his application 

merits favorable exercise of the Attorney General's discretion (Matter of 0 — , 9-323). 

The applicant in this case was inspected when she applied for 

admission as a nonimmigrant at New Orleans on June 23, 1960. 

She was found inadmissible as a nonimmigrant and was paroled 

into the United States. The purpose and duration of the parole is 

not material in making a finding as to whether the applicant was 

inspected and paroled, although it is material in determining 

whether favorable discretionary action is warranted. Therefore, 

the applicant has established that she was inspected and paroled 

into the United States. 

Although the applicant has been ordered excluded and deported 

from the United States, she is not precluded by that order from 

now establishing that she is eligible to receive an immigrant visa 

and that she is admissible to the United States as an immigrant, 

since the order was based solely on a finding that she was an immigrant not in possession of proper entry documents at the time she 

was accorded the hearing. Permission to reapply is not required, 

as the order of deportation was not executed. In this application 

she has established that she is eligible to receive an immigrant 

visa and that she is otherwise admissible to the United States as 

an immigrant. An immigrant visa is immediately available to her 

since she has established that she was born in Guatemala and is 

eligible for status as a nonquota immigrant under section 101(a) 

(27)(C) of the Act. 

The remaining issue is whether the applicant has established 

that her application merits favorable exercise of the Attorney General's discretion. On June 15, 1959, she applied for and was issued 

a nonimmigrant visa as a . visitor for pleasure under section 101 

(a) (15) [B-2] of the Act, valid until June 14, 1963, for unlimited 

266 
applications for admission to the United States. There is no question but that she then was a bona fide nonimmigrant who had no 

intention of residing in the United States. She was thereafter 

admitted to the United States as a nonimmigrant visitor for pleasure 

on two occasions and she complied with the terms of those admissions and departed from the United States within the time authorized. At the time, she last applied for admission at New Orleans 

she was no longer a bona fide nonimmigrant, since she intended to 

remain permanently in the United States. She had acted on the 

erroneous assumption that she could enter the United States as a 

nonimmigrant with the still valid nonimmigrant visa and thereafter apply for status as a permanent resident. However, she acted 

in good faith and made no attempt to mislead the inspecting officer 

as to her purpose in coming nor did she conceal her intent to reside 

permanently in the United States. The record shows that she is a 

person of good moral character. She is married to a United States 

citizen and the stability of that marriage has been established. On 

the basis of all the facts, it is concluded that her application warrants favorable action. 

ORDER: It is ordered that the order of the District Director be 

affirmed. 

267