EGBUNINE

19 I. & N. Dec. 478

• Court: Board of Immigration Appeals
• Decided: July 1, 1987
• Docket: ID 3034
• Status: Published

Opinion

Interim Decision #3034

MATTER OF EGBUNINE

In Deportation Proceedings

A-26646255

Decided by Board September 22, 1987

(1) Pursuant to sections 245(eXl) and (2) of the Immigration and Nationality Act, 8 U S.C. § 1255(eXl) and (2) (Supp. IV 1986), an alien may not adjust his status if he seeks to receive an immigrant visa on the basis of a marriage which was entered into while the alien is facing administrative or judicial proceedings regarding his right to enter or remain in the United States. (2) At a minimum, administrative proceedings begin with the filing of an Order to Show Cause and Notice of Hearing (Form 1-221) with the Office of the Immigra- tion Judge. (3) Under section 204(h) of the Act, 8 U.S.C. § 1154(h) (Supp. IV 1986), an alien may not be granted immediate rotative status by reasr, n of a marriage which was en- tered into while the alien is facing administrative or judicial proceedings regard- ing his right to enter or remain in the United States, unless the alien resides out- side of the United States for a 2-year period beginning after the date of the mar- riage. (4)An application for a waiver of excludability should not be submitted by an alien subject to the 2-year residence requirement under section 204(h) of the Act, until the respondent becomes eligible for immediate relative status. CHARGE: Order:: Act of 1952—Sec. 241(aX4) [8 U.S.C. § 1251(aX4)]—Crime involving moral turpitude ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Dr. Walter H. Oji, Esquire Charles Wiegand III 2600 South Loop West, Suite 155 Supervisory General Attorney Houston, Texas '77054

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated July 2, 1987, an immigration judge denied the respondent's motion to reopen proceedings. The respondent has ap- pealed. The appeal will be dismissed. The respondent is a 32-year-old native and citizen of Nigeria. On May 3, 1987, an immigration judge found the respondent deport- able on the charge set forth above, denied his applications for

478 Interim Decision #3034

asylum and withholding of deportation, and ordered him deported to Nigeria. The respondent did not appeal the decision. On June 19, 1987, the respondent filed a motion to reopen proceedings so that he could apply for adjustment of status. The immigration judge denied the motion on July 2, 1987. On appeal, the respondent states that the immigration judge abused his discretion because he did not consider the effect of the respondent's "exclusion" on his United States citizeu wife; the im- migration judge erred in applying the 2-year foreign residence re- quirement to the request for relief under section 212(h) of the Im- migration and Nationality Act, 8 U.S.C. § 1182(h) (1982); and the immigration judge erred in finding that the respondent had not stated any new facts that would alter the result of the earlier pro- ceedings. We have held that an alien must establish prima fade eligibility for the relief sought before a motion to reopen will be granted. Matter of Tuakoi, 19 I&N Dec. 341 (BIA 1985); Matter of Martinez- Romero, 18 I&N Dec. 75 (131A 1981), affd sub norm Martinez- -

Romero v. INS, 692 F.2d 595 (9th Cir. 1982); Matter of Lam, 14 I&N Dec. 98 (BIA. 1972); see also Matter of Garcia, 16 I&N Dec. 653 (BIA 1978); Matter of Sipus, 14 I&N Duo. 229 (31A 1972). In order to qualify for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), an alien must apply for the relief, establish that he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and that an immigrant visa is immediately available to him at the time his application is filed. The record reflects that the respondent was served on August 20, 1986, with an Order to Show Cause and Notice of Hearing (Form I- 221) dated May 19, 1986. The deportation hearing convened in Oc- tober 1986. On April 30, 1987, during the course of the hearings, the respondent married a United States citizen. As noted, the im- migration judge's initial decision in this case was rendered on May 8, 1987. Sections 245(eX1) and (2) of the Act 1 provide as follows: (eX1) An alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien's status adjusted under subsection (a). (2) The period described in this paragraph is the period during which adminis- trative or judicial proceedings are pending regarding the alien's right to enter or remain in the United States.

These provisions were added to section 245 of the Act by section 5(a) of the Im- migration Marriage Fraud Amendments of 1986. Pub. L. No. 99-639, 100 Stet. 3537. Interim Decision #3034

We find that this section governs the disposition of this appeal. At a minimum, administrative proceedings begin with the filing of an Order to Show Cause with the Office of the Immigration Judge. See 52 Fed. Reg. 2937 (1987) (to be codified at 8 C.F.R. § 3.14(a)). In this case, the Order to Show Cause was filed on August 26, 1986. The respondent was married on April 30, 1987, while administra- tive proceedings were ongoing. Therefore, the respondent is not eli- gible to be adjusted under the provisions of section 245(a) of the Act. Accordingly, he has not demonstrated prima facie eligibility for adjustment of status, and reopening of the proceedings to apply for such relief is clearly not warranted. Any issue regarding a section 212(h) waiver of excludability is premature. Section 204(h) of the Act, 8 U.S.C. § 1154(h) (Supp. W 1986), provides that an alien may not be granted immediate rela- tive status by reason of a marriage which was entered into while the alien is facing administrative or judicial proceedings regarding his right to enter or remain in the United States, unless the alien resides outside of the United States for a 2 -year period beginning after the date of the marriage. Consequently, any waiver of exclud- ability should be submitted when and if the respondent becomes el- igible for immediate relative status. The respondent also claims that the immigration judge did not consider the hardship his deportation will cause his United States citizen wife. Since the respondent is statutorily barred from adjust- ing his status under the provisions of section 245(a) of the Act, there is no issue as to the wife's hardship. In light of the foregoing, we find that the immigration judge properly denied the motion to reopen. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.