GROVE

13 I. & N. Dec. 572

• Court: Board of Immigration Appeals
• Decided: July 1, 1970
• Docket: 2046
• Status: Published

Opinion

Interim Decision #2046

MATTER, OF GROVE

In Deportation Proceedings

A-14597358

Decided by Board March ,27, 1970

The special inquiry officer does not have authority to rule upon the qualifi- cations of respondent (a nonpreference applicant for section 245 adjust- ment of status) fur precertilicativn under Schedule C of 29 CFR 60.3, since, by regulation, such authority lies solely with the District Director.

CHARGE : Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Remained longer than permitted after admission as nonimmi- grant visitor under section 101(a) (15). ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Robert T. Reynolds, Esquire Irving A. Appleman Snyder and Reynolds Appellate Trial Attorney 1000 National Press Bldg. 14th & F Streets, N.W. Washington, D.C. 20004 Of counsel: Ronald R. Bonaparte, Esquire 3600 Wilshire Blvd. Los Angeles, California 90005

The respondent is a native and citizen of New Zealand who was admitted to the United States at the port of Honolulu, Ha- waii on or about June 16, 1965 as a nonimmigrant visitor for pleasure. She has been found deportable under the provisions of section 241 (a) (2) of the Immigration and Nationality Act as an alien who remained longer than permitted. An order entered by the special inquiry officer on May 26, 1966 granted her the privi- ege of voluntary departure with an alternate order of deporta- ,

tion in the event she failed to depart when and as required. There was no appeal from this order. A warrant for the respondent's leportation was issued on May 15, 1969. The respondent on May 26, 1969 moved for a reopening of the

572 Interim Decision #2046

deportation proceedings to permit application for adjustment of status under section 245 of the Immigration and Nationality Act. An order entered by the special inquiry officer on July 25, 1969 denied this motion. The appeal from this order is now before us. The special inquiry officer denied the respondent's motion on the ground that the respondent was ineligible to apply for an ad- justment of status under section 245 (a) (3) of the Act since there was no showing that an immigrant visa was immediately avail- able for her (8 CFR 245.2 (a) (2)). The special inquiry officer also found that the respondent could not qualify as a nonpreference alien by reason of the fact that "it has been determined by the District Director that she is not entitled to be considered under the precertified list of occupations under 29 CFR, Part 60, and she does not possess an individual certification of the Secretary of Labor issued under section 212(a) (14) of the Act, as required under the provisions of 8 CFR 245.2(b) (2)." The District Direc- tor at Los Angeles ruled on July 2, 1969 that the petitioning em- ployer's request for the respondent's employment as a secretary would not be approved because the respondent did not meet the two-year training period required for precertification under Schedule C. Counsel on appeal urges error on the part of the special in- quiry officer in that he failed to review the evidence to determine whether the respondent was qualified as a secretary and, there- fore, entitled to precertification under 29 CFR 60.3. He argues that the broad authority granted the special inquiry officer by 8 CFR 242.8(a) 1 is adequate to permit consideration of the re- spondent's qualifications for precertification under 29 CFR 60.3. We do not agree. Under 8 CFR 245.1 (e) the burden is upon the respondent to es- tablish that she is within Schedule C of the precertified list set forth in 29 CFR, Part 60. 8 CFR 245.2 (b) is the regulation which governs an application by a nonpreference alien seeking an ad- justment of status under section 245 of the Act and whose occu- pation is included in Schedule C of the precertified list set forth in 29 CFR 60.3. It reads in part: 1 8 CFR 242.8(a) provides in part: "In any proceeding conducted under this part the special inquiry officer shall have the authority to determine de- portability and to make decisions, including orders of deportation as pro- vided by section 242(b) of the Act; ... to determine applications under sec- tions 244, 245 and 249 of the Act; . . . and to take any other action consistent with the applicable provisions of the law and regulation as may be appropriate to the disposition of the case." (Emphasis supplied.)

573 Interim Decision #2046 Determination concerning certification under section 212(a) (14) of the Act will be made in accordance with the pertinent provisions of section 204.1(d) (2) of this Chapter. The pertinent provisions of 8 CFR 204.1 (d) (2) read: An alien whose occupation is currently listed in Schedule C—Precertifica- tion List—will be considered as having obtained a certification under section 212 (a) (14) of the Act upon determination by the District Director that the alien is qualified for and will be employed in such occupation and that the alien will not reside in an area excluded from precertification by the Secre- tary of Labor. (Emphasis supplied.) We conclude on the basis of the foregoing regulations that the special inquiry officer does not have the authority to rule upon the respondent's qualifications for precertification under Schedule C of 29 CFR 60.3. This authority lies solely with the District Director. We affirm the action taken by the special inquiry officer in denying the respondent's motion and will dismiss the appeal. ORDER: It is directed that the appeal be and the same is hereby dismissed.