Interim Decision #1578
MATTER OF FICALORA In Deportation Proceedings* . A-14341964 Derided by Board April 21, 1066 (1) The special inquiry officer does not have authority in deportation proceed- ings to determine an alien's elegibility for sixth preference status in con- junction with an application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, as amended, nor does the Board of Immigration Appeals have appellate jurisdiction over such question, the sole determination, thereof resting with the District Director and the Re- gional Commissioner (8 CPR 103.1(e) (2) and (f) ). (2) Where a visa petition, filed just prior to the deportation hearing, to accord respondent status under the then current sixth preference portion of the Italian quota was not accepted by the Service but was returned because not accompanied by a certification from the Secretary of Labor, as required, the special inquiry officer did not err in failing to defer his decision pending re--pondent's complianie with the certification requirement. CEIARGE: Orde- Act of 1952—Section 211(a) (9) (8 U.B.C. 12817 .Nonimmigrant (temporary visitor. for pleasure changed to student) —failed to comply with conditions - of status.
The special inquiry officer, in a decision dated December 10, 1965 denied the respondent's application for adjustment of his status to that of a permanent resident; granted his alternative request for vol- untary departure; and provided for his deportation from the United States to Italy, on the charge contained in the order to show cause, • in the "event of his failure to so depart. The respondent's appeal - from* that decision, which brings the case before this Board for con- sideration, will be dismissed. This record relates to a 28-year-old male alien, married,' who is a. native and citizen of Italy. He last entered the United States on or about September 20, 1964. He was then admitted as a; nonimmigrant Be has a wife and child who are „residents of Italy and are apparently natives abd citizens of that country.
. 592 Interim Decision . 15"1"4 temporary visitor for pleasure. His status was subsequently changed to that of a nonimmigrant student. He was thereafter authorized to remain in the United States in the latter status until September 1, 1966. At the hearing - before the special inquiry officer, the respondent contended that he was still attending school. It was, hoviever, es- tablished that the school which he was then attending and had recent- ly enrolled in was not the school which had been approVed by the Immigration and Naturalization Service as the institution of learn- ing he was to attend as a student. Also, the respondent had ob- tained no permission to change from one school to another. He had attended the school that had been approved for him only one day because he did not like the school. The respondent has conceded the correctness of the facts herein- before recited. They establish his deportability on the charge con- tained in the order to show cause. The respondent's deportability has. in fact, now been conceded. This aspect of the case requires no fu rt her discussion. The special inquiry officer has granted the respondent's alterna- tive request for voluntary departure. Suffice it to say, in this con- nection, that the record before us supports said official's action in this respect. The only remaining issue is whether the special inquiry officer has properly denied the respondent's basic request for adjustment of his status to that of a permanent resident. Our answer is in the affirma- tive, for the reasons hereinafter set forth. In reaching this decision, we hare considered and rejected the respondent's contention that the special inquiry officer erred in failing to: assume jurisdiction over the question or tne respondent's eligibility for sixth preference status; or (2) defer his decision pending action by the District Director in connection therewith. The respondent is allegedly presently employed as a tile setter, brick layer and stonemason. Just prior to the hearing before the special inquiry officer, the respondent submitted to the Immigration and Nationalization Service a petition filed by his employer to have him accorded sixth preference status under the Italian quota, on the basis of such employment. Despite the fact that said portion of the Italian quota appeared to be current, the Service did not accept the petition, but instead returned it to the respondent. The reason was that a labor clearance certificate was not submitted With the visa pe- tition. In that posture of the case, then, the .special inquiry_ officer ruled the respondent ineligible for adjustment of his str. us to that of
593 • Interim- D,ecisi on #1578 ft. permanent resident, solely on the ground that he did not have a visa readily available - to him. 8 CFR 204.1(d). specifies that a petition (Form 1-140) to have an alien classified as a preference immigrant under section 203(a) (6) of , the Immigration and Nationality Act 18 U.S.C. 1153) must be ac- -
companied by a certification of the Secretary of Labor before it may be accepted by the Service and. considered properly filed; and that no appeal shall lie from a decision denying the petition for lack of the certification by the Secretary of Labor. 8 CFR 245.1(d) provides. that an applipioit for- preference status such as this respondent is not eligible for the benefits of section,. 245 of the Immigration and Nationality Act (8 :U.S.C: 1255) unless he is the beneficiary of a val- id unexpired visa petition filed in accordance with a CFR 204 and approved' to accord him such status. 8 CFR 103.1(e) (2) and (f) places the determination of -whether or not an alien possesses the qualifiCations for sixth preference statm`solely within the jurisdiction of the appropriate District Director and Regional Commissioner. 8 CPR 242.8 does not vest in the special inquiry officer authority over such a question: And CFR 3.1(b) (5) specifically excepts appellate jurisdiction of such a question from this Board: - The foregoing regulations have the force and effect of law (Di Mimi v. (1M, 96 F.2d 92). ' They are binding on all the parties here concerned. Clearly• in the light thereof and the specific provision of the regulations, the special inquiry officer properly ruled this re- spondent ineligible for adjustment of his status to that of a perma- nent resident. By the same token, respondent's argument that the -
special inquiry officer erred in failing to pass upon the question of the respondent's eligibility for sixth preference status is completely devoid of validity. The same is true' of his assertion that this Board should do so now.' We likewise find without merit the claim that the 'Special inquiry officer should have deferred his decision until the respondent had the opportunity to comply with the foregoing provisions of the regula- tions, or that this Board should now enter an order to - that effect. Despite the passage of four months since the entry of the special inquiry officer's order, there is no showing here of what, if any, efforts the respondent has, made to comply with the applicable pro- visions of the pertinent regulations hereinbefore set forth.
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Interim Decision #1578
MATTER OF FICALORA In Deportation Proceedings* . A-14341964 Derided by Board April 21, 1066 (1) The special inquiry officer does not have authority in deportation proceed- ings to determine an alien's elegibility for sixth preference status in con- junction with an application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, as amended, nor does the Board of Immigration Appeals have appellate jurisdiction over such question, the sole determination, thereof resting with the District Director and the Re- gional Commissioner (8 CPR 103.1(e) (2) and (f) ). (2) Where a visa petition, filed just prior to the deportation hearing, to accord respondent status under the then current sixth preference portion of the Italian quota was not accepted by the Service but was returned because not accompanied by a certification from the Secretary of Labor, as required, the special inquiry officer did not err in failing to defer his decision pending re--pondent's complianie with the certification requirement. CEIARGE: Orde- Act of 1952—Section 211(a) (9) (8 U.B.C. 12817 .Nonimmigrant (temporary visitor. for pleasure changed to student) —failed to comply with conditions - of status.
The special inquiry officer, in a decision dated December 10, 1965 denied the respondent's application for adjustment of his status to that of a permanent resident; granted his alternative request for vol- untary departure; and provided for his deportation from the United States to Italy, on the charge contained in the order to show cause, • in the "event of his failure to so depart. The respondent's appeal - from* that decision, which brings the case before this Board for con- sideration, will be dismissed. This record relates to a 28-year-old male alien, married,' who is a. native and citizen of Italy. He last entered the United States on or about September 20, 1964. He was then admitted as a; nonimmigrant Be has a wife and child who are „residents of Italy and are apparently natives abd citizens of that country.
. 592 Interim Decision . 15"1"4 temporary visitor for pleasure. His status was subsequently changed to that of a nonimmigrant student. He was thereafter authorized to remain in the United States in the latter status until September 1, 1966. At the hearing - before the special inquiry officer, the respondent contended that he was still attending school. It was, hoviever, es- tablished that the school which he was then attending and had recent- ly enrolled in was not the school which had been approVed by the Immigration and Naturalization Service as the institution of learn- ing he was to attend as a student. Also, the respondent had ob- tained no permission to change from one school to another. He had attended the school that had been approved for him only one day because he did not like the school. The respondent has conceded the correctness of the facts herein- before recited. They establish his deportability on the charge con- tained in the order to show cause. The respondent's deportability has. in fact, now been conceded. This aspect of the case requires no fu rt her discussion. The special inquiry officer has granted the respondent's alterna- tive request for voluntary departure. Suffice it to say, in this con- nection, that the record before us supports said official's action in this respect. The only remaining issue is whether the special inquiry officer has properly denied the respondent's basic request for adjustment of his status to that of a permanent resident. Our answer is in the affirma- tive, for the reasons hereinafter set forth. In reaching this decision, we hare considered and rejected the respondent's contention that the special inquiry officer erred in failing to: assume jurisdiction over the question or tne respondent's eligibility for sixth preference status; or (2) defer his decision pending action by the District Director in connection therewith. The respondent is allegedly presently employed as a tile setter, brick layer and stonemason. Just prior to the hearing before the special inquiry officer, the respondent submitted to the Immigration and Nationalization Service a petition filed by his employer to have him accorded sixth preference status under the Italian quota, on the basis of such employment. Despite the fact that said portion of the Italian quota appeared to be current, the Service did not accept the petition, but instead returned it to the respondent. The reason was that a labor clearance certificate was not submitted With the visa pe- tition. In that posture of the case, then, the .special inquiry_ officer ruled the respondent ineligible for adjustment of his str. us to that of
593 • Interim- D,ecisi on #1578 ft. permanent resident, solely on the ground that he did not have a visa readily available - to him. 8 CFR 204.1(d). specifies that a petition (Form 1-140) to have an alien classified as a preference immigrant under section 203(a) (6) of , the Immigration and Nationality Act 18 U.S.C. 1153) must be ac- -
companied by a certification of the Secretary of Labor before it may be accepted by the Service and. considered properly filed; and that no appeal shall lie from a decision denying the petition for lack of the certification by the Secretary of Labor. 8 CFR 245.1(d) provides. that an applipioit for- preference status such as this respondent is not eligible for the benefits of section,. 245 of the Immigration and Nationality Act (8 :U.S.C: 1255) unless he is the beneficiary of a val- id unexpired visa petition filed in accordance with a CFR 204 and approved' to accord him such status. 8 CFR 103.1(e) (2) and (f) places the determination of -whether or not an alien possesses the qualifiCations for sixth preference statm`solely within the jurisdiction of the appropriate District Director and Regional Commissioner. 8 CPR 242.8 does not vest in the special inquiry officer authority over such a question: And CFR 3.1(b) (5) specifically excepts appellate jurisdiction of such a question from this Board: - The foregoing regulations have the force and effect of law (Di Mimi v. (1M, 96 F.2d 92). ' They are binding on all the parties here concerned. Clearly• in the light thereof and the specific provision of the regulations, the special inquiry officer properly ruled this re- spondent ineligible for adjustment of his status to that of a perma- nent resident. By the same token, respondent's argument that the -
special inquiry officer erred in failing to pass upon the question of the respondent's eligibility for sixth preference status is completely devoid of validity. The same is true' of his assertion that this Board should do so now.' We likewise find without merit the claim that the 'Special inquiry officer should have deferred his decision until the respondent had the opportunity to comply with the foregoing provisions of the regula- tions, or that this Board should now enter an order to - that effect. Despite the passage of four months since the entry of the special inquiry officer's order, there is no showing here of what, if any, efforts the respondent has, made to comply with the applicable pro- visions of the pertinent regulations hereinbefore set forth. If he has made appropriate efforts in this connection, then they would be prop- erly a matter for the consideration of the apprOpriate District Di- rector in setting the time for the respondent's voluntary departure or, upon his failure to so.depart, in fixing the time for his deporta- tion. In the latter contingency, as we have previously pointed out 594 . Interim Decision *1578 (Matter of I—, A-13212,870 10 I. & N. Dec. 372) then would be the appropriate time for respondent to raise the question of the power of this Board•to see that justice is done. In any event, resptindent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render such action appropriate. tiAs we have hereinbefore pointed out, the law and the existing regulations are binding on all parties here concerned. Obviously, therefore, respondent's complaints about the confusion resulting from recent changes in the law and poisible delay in obtaining the neces- sary "clearance order" to be issued by the Secretary of Labor, as re- quired lay the implementing regulations, lie elsewhere than with this Board. Accordingly, and in view of the foregoing, the special in- quiry officer's order will be affirmed. ORDER: It is, ordered that the appeal_ be and the same is hereby dismissed,