HUANG (2ND VER)

16 I. & N. Dec. 358

Opinion

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SUPPLEMENT TO VOLUME 16 OF Tm ADMINISTRATIVE DECISIONS

UNDER THE IMMIGRATION AND NATIONALITY LAWS OF THE UNITED STATES.

MATTER OF HUANG

In Deportation Proceedings A-20548982 '

Decided by BoardApril10,1978 (1J A B alien, whnae applicatlan for adjustment of atatus under section 245 of the h m i - gration and NatioPality Act, E U.S.C. 1255,is denied by the District Director, is authorhd by H C9.R 24631a)(4) to renew or resubdt his original application t o the Immigration judge in deportation proceedings (21 Under n IonKstandingagency Lnterpmtntion the resubmission of LB appUmtion for adjustment of status belore aa immigrationjudge under 6 C.F.R. 245P(e)(41b, a d on the same facts. does not constitute a new filing. (8) In renewing I section 245 application in deportation proceeding, a respondent has satisfied the visa availabiliw requirementsof section246 if a vim wag available to hlm when he orighatly filed bie application with the Diatrict Dimtor. (Matter of Rang. Interim Decieion 2616 IBIA 1977) overruled.). CHARGE: Order. Act of 19S2-Seetion 241(a)(2). IQN Act [e UI,S.C.,lZ51(a)(2J]-Nonimmi- , grant student-remained longer than permitted O N BEHALF OF mEWNDENT: ON BEHALFOF SEEVICE: Hiram W. Kw an. Eequire Paul C. Vincent 840 North Broadway, #200 ChielRial Attorney Los Angeles, California 90012

BY: Milbollan. Chnkman; Maoiatia. Appleman, andMaguire,Board Members

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Interim Decision a2616

On September 27,1977, we dismissed the respondent's appeal from an immigration judge's decision, denying adjustment of status under section 245 of the Immigration and Nationality Act, 8 U,S.C. 1255, and granting voluntary departure pursuant to section 244(el, 8 U,S.C. 12644e). The Immigration and Naturalization Service has filed a motion for reconsideration, in which the respondent joins. The motion will be granted, The issue which we are asked t o reconsider involves the respondent 's eligibiljty for relief under prection 245 of the Act, 8 U,S.C. 1255.' The respondent, a native and citizen of the Republic of China, filed an appliuation for adjustment of status with the District Director in Los Angeles. claiming exemption from the labor certification requirements of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14),as an investor, See 8 C.F.R. 212.8(b)(4). Denial of that application on -I February 19.1975, was based on the District Director's finding that the respondent did not qualify as an investor. Deportation proceedings were instituted approximately two months later. At his deportation hearing, held on July 3,1975,the respondent again applied for adjustment of status, claiming eligibility on the basis of his earlier investment. Aftcr consulting the current Department of State Visa Bulletin, the immigration judge denied the application on the ground . that the respondent was statutorily ineligible for the relief since an immigrant vis3 number waa not then available to him,as required by the statute. On appeal. the respondent argued that while a visa number was not available a t the time of the deportation hearing, e visa number had been available when he first submitted his application to the District Director. We rejected this argument, holding that the denial by the District Director effectively terminated the original appKmtion- We further concluded that a new "filing"wasrequired when the respondent again applied for section 246 relief in deportation proceedings pursuant t o 8 C.F.R. 245.2(a)l4). Hence, visa availability would necessarily be determined as of the date of the new filing, The Immigration and Naturalization Service did not file a brief on appeal. It now urges, via motion, that we reverse our 'decision and adopt a position substantially identical to that advanced by the respondent on appeal, According b the Service, filing occurred when Mr. Huang submitted his application t o the District Director, Later

The respnndcnl applld for adjustment of statua prior to the Immigration and Nationality Act Amondmenta of 1976,Pub. L.94-671,90 Stat.W03. Whlle section 245 was one of the prolrisions ameaded, the cbangen should not &e& the eantinuing applicability ol thk deciaon. For further diecussion, see hotnote 1 01 our September 21, 1977, deciaion in th; case.

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Interim Decision a 8 1 6

consideration of his application by the immigration judge did uot constitute a pew filing because the respondent is authorized by 8 C.F.R. 246.ZIaI14) to “renew” or resubmit his original application in deportation procxtedings. Visa availability, under this theory, need only be established at the time of the filing with the District Director. In its motion, the Service maintains that in actual practice, both the Immigralion Service and the immigration judges have long treated the presentation of the application to the immigration judge aa a renewal of the original application Thus, it characterizes its position as a longstailding agency interpretation and reminds us that unless plainly erroneous or inconsistent with the regulation, an agency’s construction of its own administrative regulation is entitled to authoritative weight. Zuber v. Allen. 396 U.S. 168 (19693; Bowlee v.

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Seminole Rock Co., 325 U.S. 410 (1945).

I n lighl. of the Dumber of cases, past and pending, which have been appealed on precisely the issue now before us, we question the Service ’s appreciation of the actual practice of immigration judges in this a r e a lrongstanding or not, our experience would indicate that the Service’s position is not widely known. These reservations notwithstanding , we are well aware of the principle that deference is due to an interpretation given an administrative regulation by the federal agency entrusted with its promulgation and implementation. INS v. Stcmisic, 896 U.S. 62 (1969); Bingler v. Johnson, 894 US,741 (1909); Udal1 v. Tallma% 380 US. 1 (1966). The Service’s construction of 8 C.l;‘.R. 246.2(a)(4) is a reasonable interpretation of the regulation. We shall adopt it a s controlling. We, therefore, hold that in renewing an application for adjustment of status in deportation proceedings pur- ‘ suant t o 8 C.F.R. 245.2(a)(4), a respondent has satisfied the visa availability requirement of section 246 if a visa was available to him when he originally filed his application with the District Director. The motion for reconsideration will be granted.’

ORDERr The motion for reconsideration ie granted; our dscision in this cage, dated September 27,1977, is reversed. The record file is remanded to the immigration judge for his reconsideration of the

a In thc Respondentb Answer to Motion for heonsideretion, the raspandent eugg & ~ ,iu rn additional basis for rmpening the pmceedings. the fact that he b MW the be)ieficiary or oa approved Form I-180 (Petition b Classify Statu of Alien Relative fur Issuannec OI Immigrant Visa). If, on remand. the respondent nbandona hia investor elaim altogether and pursues, instend, B new claim of eligibdty aa &nespouse of a laurinl permanent resident under section 2081a)12) of the statute, 8 U.S.C. 115S(aHZJ, his action m y result in the crentlon of a new filing data. M. Mattsr of Jo, Interim Deeieion e412 (BIA 1976).

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Interim Decision #2616

I respondent's application for adjustment of status in light of the foregoing opinion. Board Mcmbcr Ralph Farb abstained from consideration of this case.

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$62.4

~US.GOVERNMENTPRlNTINGOmCE:1980 0-3294399

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