VILANOVA-GONZALEZ

11 I. & N. Dec. 610

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1584
• Status: Published

Opinion

Interim Decision *1584 r-

MATTER OF VICANOVA-GONZALEZ

Iii Deportation Proceedings

A-12016344' Deckled by Board May 10, 1000

(1) Since the term "business" as used in section 101(a) (15)•(B) of the Immi- gration and Nationality Act does not include local employment or labor for hire, a nonimmigrant visitor for business 'rho secured a social security num- ber and unauthorized employment on. a 40-hour per week basis as a construc- tion worker, which employment is not of a temporary nature, is deportable under section 241(a) (9) of the Act for failure to comply with the conditions of his status. (2) Where respondent's section 245 adjustment of status, granted in 1960 'upon approval of his first United States citizen wife's visa petition to accord him nonquota status, was rescinded in 1965 under section 246 of the Act because the marriage was not bona fide, having been entered into solely to obtain nonquota status, he comes within the provisions of section 204(c) of the Act, as amended by section 4(c) of P.L. 89-236, and is thereby precluded from establishing eligibility for immediate relative status on the basis of his present marriage to a United States citizen. Omens= Order: Act of 1962—Section 241(a) (9) [fi U.S.C. 1251(a) (9)]—Nonimmi- grant, failed to comply with conditions of status.

This case comes forwird on appeal from an order entered by the special inquiry officer on. January 3, 1966 granting the respondent's request that he be permitted to depart voluntarily from the United States, in lieu of deportation, and directing that if he fails to depart when and as required he be deported to Spain, the country of his nativity, on the charge set forth in the order to show cause. The respondent, a 29-year-old married male, native and citizen of Spain, has resided continuously in the United States Since his admission at New York, New York on. or about February. 9, 1960 as a nonimmi- grant visitor for business for a period of six months. (p. 25). Depor- tation proceedingS.were instituted against the respondent on Septem- ber 7, 1965. Several hearings in deportation proceedings were held,

61 6 Interim Decision *1581 at New York, NeW York between September 15, 1965 and December 7, 1965. The respondent and counsel admitted the truth of the fee- tuaraBegations setlorth in .the order to show cause. The respondent was married to'orie Edith Games, a citizen of the United States, at New York, New York on February 94, 1960, ap- proximately two weeks after his admission thereto as a nonimmigrant visitor. A visa petition to accord the respondent nonquota status, -

executed and filed on his behalf by Edith Game's, was approved by the Service on May 20, 1960 and his application for adjustment of status to that of a permanent resident under section 245 of the Im- migration and Nationality Act was granted on June 23, 1960. The facts detailing the respondent's becoming the subject of rescission, proceedings pursuant to section 246 of the Immigration and National- ity Act on the ground that the marriage contracted between him and the aforementioned Edith Games on February 24, 1960 had been entered into solely for the purpose of obtaining nonquota status under the Immigration and Nationality Laws and not as a bona Me re-, lationship followed by the special inquiry officer's order dated May 3, 1905 directing that the adjustment of the respondent's status to that of a lawful permanent resident under section 246 of the Immigration and Nationality Act be rescinded have been fully and, adequately covered by the special inquiry officer and this Board in prior determ- inations. ' When this case• fiist came-before this Board on August 20, 1965, we dismissed the appeal from the order entered by the special in- quiry officer on May 30965 directing that pursuant to section 216 of-

the ImmigratiOn and Nationality Act the adjustment of states grant- ed to the alien on June 23, 1960 to .that of a permanent resident as provided under Section 245 of the Immigration and Nationality Act be rescinded; Thereafter, the respondent liy motion requested re- hearing, reargumezit and reconsideration of our decision of August 20, 1965. The Board denied the motion for rehearing, reargument and.recimsiderati.-n and the reasons therefor are clearly ,set forth in our decision of November 1, 1965. .A.Jurther recital of the remain- ing facts in this case is not deemed necessary inasmuch as they have been fully and adequately covered by the special inquiry officer and this Board in prior determinations The points raised by counsel on appeal have been fully and adequately disposed .pf by this Board in its respective decisions of August 20 and November 1, 1965. On examination of the record we fold the respondent accepted un- authorized gainful employment with the Richfield Construction Corporation is a laborer on or about April 25, 1960. The respond- ent's employer certified in a communication dated April 25, 1960 611 Interim Decision #15814 that the respondent had secured a Social Security number and was employed by them as a. construction laborer at -at, salary of $2.80 per . The employer stated the respondent would work a minimum of 40 hours per week and that his employment was not of a tem- porary nature. The term "business" as used in section 101(a) (15) (B) of the Immigration and Nationality. Act means legitimate ac- tivities of a commercial or professional character (41.25 (b), 22 CPR). The term "business" as used in section 101(a) (15) (B) of the Immi- gration and Nationality Act does not include local employment or labor for hire. As previously noted, the respondent and counsel ad- mitted the truth of the factual allegations set forth in the order to show cause. On the basis - of the evidence present in this record. he is subject to deportation under the provisions of section 241(a) (9) of the Immigration and Nationality Act, in that, after admission as a nonimmigrant under section 101(a) (15) of the -Act. he failed to comply with the conditions of such•status. . The record shows the respondent was married to one Rosencla Cheures, a citizen of the United States, on June 12, 1965. The re- spondent's testimony indicates that his wife is pregnant and expects to be delivered of their citizen child within the next several months. It does not appear that the respondent's immigrant status can be c(tinstecl under section 245 of the Immigration and Nationality Act inasmuch as section 4(c) of Public Law 89-236;approved $ttth C'ontr- rests, October 3, 1965, which amends section 204(c) of the Immigra- tion and ;Nationality Act among other things states that no petition shall be appfived if the alien .has previously been accorded a non- quota or preference status as the spouse of a citizen of the United., States * *, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. While we arc aware of the appealing factors pres- ent in this case, we mitst, on the basis of the evidence present in this record, affirm the decision of the special inquiry officer inasmuch as the respondent has beet accorded the only discretionary relief avail- able to him at the pre ent time. Accordingly, the following order will be entered. ORDER: It is ordered that the appeal be dismissed.