Interim Decision #2282 

MATTER OF GAGLIOTI 

In Section 245 Proceedings 

A-18597420 

Decided by Regional Commissioner May 1, .1974 

Applicant, a deaf mute, is not for that reason alone considered to be physically 

incapable of reading so as to come within the literacy requirement exemption 

of section 212(a)(25) of the Immigration and Nationality Act. Since he is 

unable to read any language and is not within any of the other classes of 

aliens exempt under the Act from the literacy requirement, he is inadmissible 

under section 212(a)(25) of the Act, and, therefore, is statutorily ineligible for 

adjustment of status under section 245 of the Act, as amended. 

This matter is before the Regional Commissioner on certification 

by the District Director who denied the application for adjustment 

of status under section 245 of the Immigration and Nationality 

Act, as amended. 

The applicant is a 59-year-old single male native and citizen of 

Italy. He last entered the United States as a nonimmigrant visitor 

for pleasure April 20, 1968 and received extension of stay to June 

30, 1970. Private bills to give the applicant permanent residence 

status were introduced in the 91st and 92nd Congresses, but failed 

passage. 

The father of the applicant became a naturalized citizen of the 

United States in 1937 but the applicant was then 22 years of age, 

has never been lawfully admitted to the United States for permanent residence and therefore did not derive United States citizenship. His mother, a native and citizen of Italy, never resided in the 

United States. Both parents are now deceased. He has no close 

relatives in Italy. He has two sisters living in the United States, 

one a citizen of the United States, the other a permanent resident. 

A petition to accord the applicant preference under section 

203(aX5) of the Immigration and Nationality Act as the brother of 

a United States citizen has been approved and a visa number is 

immediately available to him. 

The applicant is a deaf mute and is afflicted with diabetes. He is 

unemployed and it is unlikely that he will ever engage in gainful 

employment. He receives a monthly Social Security check of 

$10590 as the disabled son of a United States citizen. He receives 

room and board at the homes of his sisters. From evidence 

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Interim Decision #2282 

submitted by his two sisters and by a nephew, we believe that the 

applicant has affirmatively established that he will not have to 

earn a living (section 212(a)(7)) and that he is not likely to become a 

public charge (section 212(a)(15) of the Immigration and Nationality Act).. 

The sole remaining issue to be resolved then is whether the 

applicant is excludable under section 212(a)(25) of the Act which 

states that: 

Except as otherwise provided in this Act, the following classes of aliens shall 

be ineligible to receive visas and shall be excluded from admission into the 

United States: 

Aliens (other than aliens who have been lawfully admitted for permanent 

residence and who are returning from a temporary visit abroad) over 

sixteen years of age, physicially capable of reading, who cannot read and 

understand some language or dialect. 

The record shows that the applicant cannot read any language. 

To be exempt from the excluding provisions of section 212(aX25), 

supra, the alien must be included in one of the following classes: 

L Any alien sixteen years of age and under (section 212(a)(25) of the Act). 

The applicant is 59. 

2. Any alien physically incapable of reading (section 212(aX25) of the Act). 

There is no showing that the applicant is physically incapable of reading. A 

deaf mute is not considered to be physically incapable of reading (U.S. ex 

Engel v. Tod, 294 Fed. 820). 

3. Any alien lawfully admitted for permanent residence who is returning from 

a temporary visit abroad (section 212(a)(25) of the Act). The applicant has 

never been lawfully admitted for permanent residence. 

4. Any alien who is the parent, grandparent, spouse, daughter or son of an 

admissible alien, or of an alien lawfully admitted for permanent residence, or 

of a citizen of the United States, if the illiterate alien is accompanying or 

coming to join such relative in the United States (section 212(b)(1) of the Act). 

The applicant is the brother of a United States citizen and of an alien lawfully 

admitted for permanent residence but brothers and sisters are not included in 

this exemption. 

5. Any alien who is seeking to enter the United States to escape religious 

persecution in the country of his last permanent residence (section 212(b)(2) of 

the Act). No such claim has been advanced by the applicant. 

6. Any alien seeking entry as a nonimmigrant (section 212(dX1) of the Act). 

Although the applicant entered as a nonimmigrant visitor for pleasure he 

now seeks immigrant status. 

We are aware of the sympathetic features of the case and of the 

dilemma faced by the applicant's sisters in arranging for his care, 

but our decision is not one of discretion. The applicant is statutorily ineligible for admission as an immigrant under section 

212(aX25), supra, and therefore ineligible for adjustment of status 

under section 245 of the Immigration and Nationality Act. The 

decision of the District Director will be affirmed. 

It is ordered that the denial of the application be and the same is 

hereby affirmed. 

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