K-S-Y

9 I. & N. Dec. 209

• Court: Board of Immigration Appeals
• Decided: July 1, 1961
• Docket: 1125
• Status: Published

Opinion

MAll R OF K—S--Y- In DEPORTATION Proceedings A-9825443 Decided by Board Janu-ary 30, 1961 Suspension of deportation—Eligibility—Application requirement under section 244(a)(1), 1952 act. An application for adjustment of status under section 6, Refugee Relief Act 1f4:■ :-i. is not equivalent to, and may not lie s- uhstituted far, an applica- tion for suspension of deportation under section 244(a) (1) of the 1952 Act. CHARGE: Warrant: Act of 1924—Remained longer—seaman.

BEFORE THE BOARD

DISCUSSION: An order entered by the Assistant Commissioner, Immigration and Naturalization Service on July 25, 1951. provides for the deportation of the respondent as an alien who subsequent to entry as a seaman remained longer than permitted. An appeal from the decision of the Assistant Commissioner was dismissed by the Board of Immigration Appeals on NOvember 15, 1951. The re- spondent now moves this Board to reopen the proceedings to per- mit the filing of an application for suspension of deportation under section 244 of the Immigration and Nationality Act of 1952 (8 U.S.C. 1254). The respondent, a native and citizen of China, male, unmarried, 34 years of age, alleges that he last entered the United States as a seaman through the port of New Orleans, on or about December 5, 1949. Respondent's motion to reopen the proceedings to permit appli- cation for suspension of deportation is predicated on the theory that he is now statutorily eligible for this relief. Neither his motion nor the brief in support thereof makes any reference as to which para- graph of section 244, supra, respondent relies upon in his claim of eligibility. Clearly, respondent is not statutorily eligible for relief under sub- paragraphs 2, 3, 4 and that portion of subparagraph 5 of section 244(a) which relates Lu remained-longer seamen because he did not

209. 654377-63 is last enter the United States "within two years prior to ... the date of enactment" of the 1952 Act (June 27, 1952). Since no applica- tion for suspension of deportation was filed under section 19(c) of the Immigration Act of 1917, the savings clause of the 1952 Act (section 405(a) ; 8 U.S,C. 1101, note) does not inure to respond- ent's benefit. Respondent apparently seeks to establish eligibility for suspen- sion of deportation under section 244(a) (1) [8 U.S.C. 1254(a) (1)] on the basis of an application filed pursuant to section 6 of the Refugee Relief Act of 1953. He maintains that this application for adjustment of status, filed on June 23, 1955, and extended to August 31, 1957, is tantamount to an application for suspension of deporta- tion and, therefore, is a proceeding which in effect sought the same relief as suspension of deportation. Paragraph 1 of section 244(a) of the Immigration and Nation- ality Act of 1952, by its terms, expired on December 24, 1957. Re- spondent apparently is of the belief that he is now statutorily eligi- ble for suspension of deportation under the expired paragraph regardless of the fact, that he did not file an application with the Attorney General within the statutory five-year period. He reasons that the section 6 (Refugee Relief Act of 1953) application filed June 23, 1955, may be substituted for the application required by paragraph 1 of section 244(0. Rup-ra_ Respondent cites no author- ity to support his position. An application to adjust status under section 6 of the Refugee Relief Act of 1953 is not tantamount to an application for suspension of deportation as the respective acts pro- vide entirely different standards for eligibility thereunder. Sec- tion 6 of the 1953 Act requires that the application must be filed not later than June 30, 1955. Paragraph 1 of section 244(a), supra, requires, inter alia, physical presence in the United States for a "continuous period of not less than seven years immediately pre- ceding the date of (filing) such application."(Emphasis supplied.) Respondent on June 23, 1955, the date he filed his section 6 appli- cation, did not have seven years of continuous physical presence in the United States. He last entered on December 5, 1949. An appropriate order will be entered. ORDER: It is directed that the uiuLiuu be and the same is hereby denied.