438 F.

2d 1028

Zalmai Sayyad AMEERIAR and Ayesha Zalmai Ameeriar,

Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 18038.

United States Court of Appeals, Third Circuit.

Argued April 21, 1970
Reargued Nov. 24, 1970,
Decided Feb. 16, 1971,
Rehearing Denied March 22, 1971

James J. Orlow, Orlow & Orlow, Philadelphia, Pa., for petitioners.

Merna B. Marshall, Asst. U.S. Atty., Philadelphia, Pa., for respondent.
Before GANEY, VAN DUSEN and GIBBONS, Circuit Judges.
Reargued before HASTIE, Chief Judge, and GANEY, FREEDMAN,
SEITZ, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, and ROSENN,
Circuit Judges.
OPINION OF THE COURT
GANEY, Circuit Judge:

The sole problem posed for disposition by this court is whether there was a
proper exercise of discretion by the designees of the Attorney General, the
Special Inquiry Officer and the Board of Immigration Appeals in denying
adjustment of status to the petitioners under 245 of the Immigration and
Nationality Act, 8 U.S.C. 1255(a), (1964). Review is here sought under 242(b)
of that Act, 8 U.S.C. 1252(b), (1964).

The narrow problem posed here results from the fact that the petitioners have
conceded their deportability, but have requested that they be given the

discretionary relief of adjustment of status, 8 U.S.C. 1255(a), (1964), or

voluntary departure in lieu of deportation, 8 U.S.C. 1254(e), (1964).
Additionally, the Government has conceded that petitioners have met the
statute requisite for eligibility of adjustment of status, 8 U.S.C. 1255(a), (1964).
The guiding principle for the exercise of such discretion is set forth in Santos v.
Immigration and Naturalization Service, 375 F.2d 262, 264 (C.A.9, 1967),
wherein the court, in considering the proper exercise of discretion, stated: 'An
'evaluation of all the facts' requires due consideration be given to the presence
or absence of special equities. See Matter of Oritz-Prieto, B.I.A.Int.Dec. #1508,
July 16, 1965; Matter of V , 7 I. & N.Dec. 348 (1956). Indeed, such a
requirement is implicit in the high burden of proof placed on the applicant by
the Board. 'The extraordinary discretionary relief provided in Section 245 of the
Act can only be granted in meritorious cases; the burden is always upon the
alien to establish that his application for such relief merits favorable
consideration.' Matter of Oriz-Prieto, supra,; Matter of A , 9 I. & N.Dec. 249
(1961); Mater of G , 9 I. & N.Dec. 38 (1960). See also 8 C.F.R. 242.17(d).'1 Cf.
Fook Hong Mak v. Immigration and Naturalization Service, 435 F.2d 728 (2nd
Cir., Opinion of 11/24/70).
3

Section 245 of the Immigration and Naturalization Act2 requires the alien to
fulfill two requirements, (1) the statutory requirements of inspection and
admission, application, eligibility for an immigrant visa and immediate
availability of the visa, and (2) he must convince the Attorney General to
exercise favorable discretion in his case. Lihati Lui Unga v. Immigration and
Naturalization Service, 404 F.2d 48, 49 (C.A.9, 1968); Chen v. Foley, 385 F.2d
929, 935 (C.A.6, 1967). Adjustment of status is therefore a matter of
administrative grace, not mere statutory eligibility.3

Based on the 'unequivocal' finding that petitioners had entered the United States
with the intention to seek employment and adjustment of status immediately,
the Special Inquiry Officer declined to exercise his discretion to grant them
adjustment of status, holding, 'It may seem to some persons to be rather harsh to
require these people to depart from the United States merely for the purpose of
obtaining immigrant visas with which to return for permanent residence. I
cannot, however, in good conscience, grant their request for adjustment of
status under Section 245 * * * because the adjustment of status provided for in
that section of law is an extraordinary means of giving persons lawful
permanent residence status where their cases have great merit. The cases of
these two respondents do not have such great merit and, in addition, I am
satisfied that they have attempted to impose upon the Government of the
United States by coming here as nonimmigrants with the intention of adjusting
their status to that of lawful permanent resident aliens as soon after they arrived

in the United States as they believed possible.'

5

The Board of Immigration Appeals dismissed petitioners' appeals, finding that

the Special Inquiry Officer had properly exercised his discretion.

The pertinent facts upon which the Special Inquiry Officer's judgment was
affirmed by the Board of Immigration Appeals are as follows: Zalmai Sayyad
Ameeriar came to this country from Kabul, Afghanistan, where he had been a
cashier in the employ of the United Nations for a period of five years, and it
may readily be assumed from the nature of his position that he was entirely
familiar with English and governmental authorities. Accordingly, in 1967, he
first sought and obtained a visa entitling him to come to this country as a
student, and when discussing the nature of his visa with his superior, he was
told it was a mistake and he should apply for a visitor's pleasure visa, which he
obtained in 1968, from the Deputy Representative of the United Nations,
calling for a pleasure trip as a tourist in the United States, 'on a personal matter,'
and he forwarded this to the Consul of the United States.4 He was admitted to
this country as a nonimmigrant under 101(a)(15) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(15)(b) (1964). This would show his
knowledge of the limited duration of his visa. He was married to his wife for
seventeen years and sired six children, three of whom he placed with his father
and three with their mother. After separating from his wife, he secured a
divorce from her and married his present wife. Five months after his marriage,
he applied for the visa aforesaid, left Afghanistan and arrived in New York on
February 10, 1968. On February 15, 1968, he located in the small village of
Butztown, Pennsylvania, on the outskirts of the city of Bethlehem, hard by the
sprawling plant of the Bethlehem Steel Company which stretches along the
Lehigh River for some five miles, and secured a job as an accountant with a
steel contracting firm, all this within five days of his arrival in New York. On
February 14th, four days after his arrival here, as shown by evidence offered by
the Government, he resigned his position as a cashier with the United Nations
in Kabul, Afghanistan, and never renewed his application for a visitor's
pleasure visa, but explained the same by saying that at the time he made
application with the Labor Department for a job, he was told by a lady clerk,
'You are in under a visitor's visa because now your visa is changed to other
immigration visa. If you work or don't work, that is up to you.' He testified this
conversation persuaded him that it was unnecessary to renew his visitor's
pleasure visa and he thought he was not overstaying his permitted time, which
was to expire on March 15, 1968. He testified that it was his intention to come
to the United States and remain here if he liked it, that he wanted to stay in this
country and his wife, likewise, repeated the same statement.

At the time of his departure from Afghanistan and his arrival in New York, his
present wife was five months pregnant and she testified that if they were
compelled to return to Afghanistan, food conditions were not conducive to the
proper rearing of her infant child and a change in climate and food would be
bad for the child.

The reality of the situation must be taken into consideration as it obtains on this
record in which a total stranger to a foreign land, having no relatives here at all,
comes immediately on a visitor's pleasure visa to a large industrial center,
secures a house in a small village thousands of miles from his home and
immediately seeks employment, all within five days.

While we are in agreement that the law should lend itself to the amelioration of
hardship cases and especially since previously the Government permitted
individuals to arrange for what was termed 'pre-examination' cases in which
they went to Canada and returned to the United States and thereby acquired
permanent residence status, nevertheless, adjustment of status should be granted
only in meritorious cases.

10

Petitioners argue that amendments made to Section 245 in 1958 and 1960
demonstrate a Congressional intent to prohibit the Attorney General from
denying adjustment of status where the result would be, as in this case, the
return of the alien to his home country to apply for and receive an immigrant
visa immediately available to him there. However, our examination of the
legislative history indicates that the deletion of certain eligibility requirements
from Section 245 as originally enacted was intended to increase, not decrease,
the scope of the Attorney General's discretion. In the joint report accompanying
the 1958 amendments, it was stated: 'The purpose of the bill is (1) to revise
section 245 * * * in such a manner as to broaden the discretionary authority of
the Attorney General to adjust the status of certain aliens * * * in worthy cases
* * *.' Sen.Rep.No. 2133, J.R.Rep.No. 2258, 85th Cong., 2d Sess. (1958), 1958
U.S. Code Cong. & Admin.News, p. 3698. In 1960, the amendments broadened
the class of aliens that the Attorney General could consider still further,
'thereby providing considerably more flexibility in the administration of the
law.' Sen.Rep.No. 1651, 86th Cong., 2d Sess. (1960), 1960 U.S.Code Cong. &
Admin.News, p. 3147.

11

Petitioners also argue that Congress removed from the consideration of the
Attorney General whether an applicant for adjustment entered the United States
with a pre-fixed intent to remain, by deleting in 1960 the eligibility requirement
that an applicant be a 'bona fide nonimmigrant.' The 1960 Committee Report

makes clear that such was not the case. 'It is intended that only those aliens who
enter the United States in good faith and without any intention of circumventing
quota restrictions * * * shall be entitled to the benefits of section 245(a), as
amended.' Sen.Rep.No. 1651, supra, 1960 U.S.Code Cong. & Admin.News, p.
3147.'5
12

When we consider all the factors here involved, the totality of the
circumstances under which he left Kabul, Afghanistan, the securing of a
visitor's pleasure visa; his being only five days in this country and applying for
a permanent job which he secured; his resignation from his job in Afghanistan
as cashier for the United Nations after four days here, all point unerringly, in
our judgment, to the fact that he had a preconceived intention in Kabul,
Afghanistan, of bypassing normal consular procedures for obtaining permanent
residence.6 We see no meritorious claim advanced by counsel, nor indeed does
the record disclose any, and in our opinion the record justifies a finding that
there was a deception on the appellants' part of the Immigration authorities. If
this Court lends it imprimatur to this conduct, as shown by this record, it would
work an attrition and indeed a rapid erosion of the authority invested in the
Attorney General by Section 245 to exercise his discretion in the granting or
denying of petitioners' adjustment of status.

13

We have carefully considered the Board's decision in Matter of Arai (Interim

Decision No. 2027, filed March 4, 1970) and have concluded that it is
inapplicable to the facts presented by this record.7 See Thomaidis v.
Immigration and Naturalization Service, 431 F.2d 711, 712 (C.A.9, 1970).

14

The judgment of the Board of Immigration Appeals will be affirmed and

adjustment of status to the petitioners denied.

15

GIBBONS, Circuit Judge (dissenting).

16

This case is before us on a petition filed pursuant to 8 U.S.C. 1105a (1964) for
review of an order of the Board of Immigration Appeals. The petitioners seek
review of a decision of the Board, affirming an order of a special inquiry officer
in a proceeding under 242(b) of the Immigration and Nationality Act, 8 U.S.C.
1252(b) (1964), denying to petitioners adjustment of status authorized by 245 of
that Act, 8 U.S.C. 1255(a) (1964).

17

Petitioners, husband and wife, are natives of Kabul, Afghanistan. They entered
the United States at New York on February 5, 1968 as temporary visitors for
pleasure, authorized to remain in that status until March 15, 1968. On February

10, 1968 the husband obtained forms from the Philadelphia office of the
Immigration and Naturalization Service to apply for adjustment of status. The
husband-petitioner mailed the application with a transmittal letter dated
February 15, 1968 to the Philadelphia office of the Immigration and
Naturalization Service where it was received on February 19, 1968. With that
application he furnished to the District Director a letter from the J.M. Foster
Co., Inc. advising that petitioner had been referred to it by the Pennsylvania
Bureau of Employment Security, and that they would like to hire him as an
accountant. On March 1, 1968 the District Director in Philadelphia returned the
forms to petitioner with a letter advising that he had to obtain a Labor
Department Alien Employment Certificate through the Pennsylvania Bureau of
Employment Security. This advice was erroneous, because, as the Board
concedes in its opinion, under the regulations of the United States Department
of Labor then in effect, 29 C.F.R. 60.3(b) (Sept. 2, 1967), the Immigration and
Naturalization Service was required to process an application for such a
certificate on behalf of an accountant clerk.
18

Petitioner attempted, however, to comply with the District Director's March 1,

1968 letter by having the J.M. Foster Co., Inc. fill out application form E.S.
575B, and by filling out application form E.S. 575A, and filing both with the
Pennsylvania Bureau of Employment Security. On April 4, 1968, that office
advised the District Director by letter that it was processing the application. On
April 8, 1968, petitioner resubmitted his application to the District Director
with copies of the applications he filed with the Bureau of Employment
Security.

19

Meanwhile, on April 3, 1968 the District Director, having on March 1, 1968

erroneously returned petitioners' application for a change of status, issued an
Order to Show Cause and Notice of a Hearing on April 15, 1968 in deportation
proceedings under 242(b) of the Immigration and Nationality Act, 8 U.S.C.
1252(b) (1964). The Notice, which was served on April 4, 1968, charged that
after admission as a nonimmigrant 1101(a)(15)(B) (1964), petitioners 1101(a)
(15)(B) (1964), petitioners remained in the United States for a longer time than
permitted. Thus, because the District Director erroneously returned petitioners'
papers on March 1, 1968, they became subject to deportation on March 15,
1968 as overstayed visitors even though, as is pointed out hereinafter, they met
the statutory requirements of eligibility for adjustment of status under 245.

20

On April 15, 1968, both petitioners appeared before the special inquiry officer.
They were not represented by counsel. The female respondent spoke no
English; the male respondent had a limited command of English. The special
inquiry officer advised the petitioners that he could consider their application

for adjustment of status, and an application for voluntary departure in lieu of

deportation. Such advice was required by 8 C.F.R. 242.17, but the record of the
April 15, 1968 hearing would not support a conclusion that either petitioner
appreciated the significance of the special inquiry officer's brief references. At
the conclusion of the hearing an oral decision was delivered, denying
adjustment of status and ordering deportation.
21

Thereafter, petitioners retained counsel, who on their behalf filed a timely

notice of appeal to the Board of Immigration Appeals which on July 18, 1968
granted an application to reopen the 242(b) hearing for additional evidence. A
reopened hearing was held before the same special inquiry officer on
November 22, 1968 and December 13, 1968. This time petitioners were
represented by counsel, and an English-Persian translator was present. In the
reopened hearing, counsel on behalf of petitioners conceded their deportability
as overstayed visitors, but contended that they should be afforded the
discretionary relief of adjustment of status, 245, or of voluntary departure in lieu
of deportation, 244. 8 U.S.C. 1254(e) (1964). The only witness who testified in
either the reopened or the original hearing was the husband-petitioner; a
stipulation was made at the reopened hearing with respect to the wife's
testimony. At the reopened hearing it was conceded that petitioners met the
statutory requisites for eligibility for adjustment of status under 245. Testimony
was directed solely to the exercise of discretion with respect to adjustment of
status or voluntary departure in lieu of deportation.

22

Following the hearing, the special inquiry officer granted voluntary departure,
but denied adjustment of status. His decision states:

23

I am denying the applications for adjustment of status as a matter of discretion

for two reasons: First, the respondents have been in the United States for a
period of only one year as of the present time, and, second, because it is my
finding that the respondents intended to remain in the United States
permanently or at least indefinitely at the time of their entry and admission as
nonimmigrants.
The special inquiry officer also found:

24

I specifically find that there is, in the record, no proof of fraud such as would
render either of the respondents inadmissible under Section 212(a)(19) of the
Act.

25

Petitioners appealed the denial of adjustment of status to the Board of

Immigration Appeals which affirmed, holding:

26

(The facts) establish that respondents entered with the intention of residing
permanently. The entry of an alien with such an intention is a sufficient reason
for denying relief. The other reason given by the special inquiry officer-- length
of residence-- is a factor which may be considered in determining whether
discretion should be exercised.

27

The petition to this court challenges that holding.

28

The majority by its decision assumes that we have jurisdiction.1 Moreover,

since it discusses the facts extensively it assumes a scope of review which
permits us to consider the Board's factual determinations as well as its exercise
of discretion.2 I agree that we have jurisdiction and that we can review both the
Board's factual determination and its exercise of discretion. We must determine,
first, whether the Board's findings of fact are supported by reasonable,
substantial and probative evidence on the record considered as a whole, and
next, whether in the light of those facts, and the congressional purpose in
enacting 245, there was any abuse of discretion.3
THE FACTUAL DETERMINATION

29

The sole reason advanced by the Board for its decision to deny adjustment of
status is the finding of the special inquiry officer that petitioners entered the
United States on a visitors' visa with the subjective intention of remaining
permanently. The length of residence here was said to be only a factor to be
considered. Since, except for a stipulation as to what the wife's testimony
would be, the only testimony before the special inquiry officer was by the
husband-petitioner, it is to his testimony, and the exhibits introduced in
evidence, that we must look for reasonable, substantial and probative evidence
of their subjective intention. So far as it goes, the finding of subjective intention
is supported by such evidence. I say so far as it goes, for the special inquiry
officer does not go so far as to find that it was petitioners' intention to stay here
permanently whether or not they could legally do so. Such a finding certainly
would not on the record be supported by reasonable, substantial and probative
evidence. On the contrary, the most that could be found with respect to the
husband-petitioner's intention is that prior to his entry he was aware of the
possibility of adjusting his status pursuant to 245, and intended, if he was able
to find work here, to make such an application. Read in this context, the finding
as to his subjective intention is supported by the required evidence.

30

The opinion of the court refers to a 'preconceived intention in Kabul,

Afghanistan, of bypassing normal consular procedures for obtaining permanent
residence.' To the extent that this finding refers to a knowledge of the
availability of the adjustment of status remedy, it is supported by the agency
record. But the legal conclusion implicit in the use of the term 'normal consular
procedures' is my crucial difference with the majority. For implicit in the use of
the words 'normal consular procedures' is the unexpressed but clear assumption
that any procedures other than consular procedures are 'abnormal.' I assume that
Congress, when it enacted 245, established a 'normal' alternative to consular
procedures, namely adjustment of status. The court must determine, therefore,
whether or not a pre-entry subjective intention to apply for adjustment of status
if the immigrant was able to find work here is, in the light of the Congressional
purpose in enacting 245, a sufficient reason for an adverse exercise of
discretion.

31

STANDARDS OF DISCRETION FOR ADJUSTMENT OF STATUS

32

Prior to 1952, if a person was in the United States temporarily or irregularly,

but eligible for an immigration visa and quota number, there was no statutory
method of obtaining such a visa without leaving the country and applying to a
consulate. To alleviate hardships, the Immigration and Naturalization Service
developed the practice of pre-examination, whereby under an agreement with
Canada, eligible immigrants were examined by immigration officers in the
United States, and when their admissibility was established, sent by
prearrangement to a consul in Canada who issued a visa. A limited remedy of
adjustment of status was enacted in the Act of June 27, 1952, Pub.L.No. 82414, 245, 66 Stat. 217, and subsequent amendments of the statute broadened its
application. The administrative regulations sanctioning pre-examination were
revoked in 1959. 24 Fed.Reg. 6477 (1959). See Bufalino v. Holland, 277 F.2d
270, 281 (3 Cir.), cert. denied, 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85
(1960). There is no clear administrative policy about acceptance of a visa
application in a country other than that of the applicant's nationality. C. Gordon
& H. Rosenfield, Immigration Law and Procedure 7.36, at 7-25 (Rev. ed.
1969). Thus, if the statutory remedy of adjustment of status is unavailable, the
petitioners would in all probability have to return to Afghanistan to obtain a visa
for which they are eligible.

33

The limited adjustment of status procedures was amended in 1958, Act of Aug.
21, 1958, Pub.L.No. 85-700, 1, 72 Stat. 699, and the legislative history of those
amendments shows, more clearly than is often the case, what Congress had in
mind.

34

The administrative operations in the application of that section, and other

related features of the general immigration law regarding adjustment of status
of aliens within the United States, have been the subject of close scrutiny by the
Committees on the Judiciary of both the Senate and the House of
Representatives. For a considerable period of time, there has appeared to be a
steadily mounting number of cases in which aliens determined by the
Immigration and Naturalization Service to be eligible for permanent residence
in the United States in accordance with all the applicable provisions of the
Immigration and Nationality Act, had to comply with what appeared in those
cases to be an unnecessary procedure known as preexamination and voluntary
departure with a view toward applying for an immigrant visa in one of the
United States consular offices in Canada. During the fiscal year ending June
30, 1958, more than 7,000 aliens in the United States had their eligibility to
enter as immigrants determined in this country prior to sending them to Canada
where they briefly appeared before a United States consular officer, and then
returned to this country with an immigrant visa.

35

In addition, the review of a considerable number of private relief immigration

bills seeking adjustment of status of nonimmigrants has further demonstrated to
the committee the desirability of general amendatory legislation on this subject.

36

The language of the instant bill has been carefully drawn so as not to grant
undeserved benefits to the unworthy or undesirable immigrant. This legislation
will not benefit the alien who has entered the United States in violation of the
law. Further, this legislation does not affect the statutory standards of eligibility
for immigration into the United States, and it does not change in any way the
numerical limitations as set forth in the existing immigration quotas.
Essentially, this is a procedural measure designed to ameliorate existing
practices and procedures developed by way of administrative regulations in
existence, with minor changes, since 1935. S.Rep.No. 2133, H.R.Rep.No. 2258,
85th Cong., 2d Sess. (1958), 2 U.S.Code Cong. & Admin.News, p. 3699.

37

The reports also refer to saving of expense both by the Government and by the
immigrant by eliminating the formalism of a trip to Canada. When, in 1960, the
statute was amended, Act of July 14, 1960, Pub.L.No. 86-648, 10, 74 Stat. 505,
to eliminate as an eligibility requirement admission as a bona fide
nonimmigrant, the Senate Report on the amending statute quoted with approval
the above quoted language of S.Rep.No. 2133, repeated the ameliorating
purposes of the legislation, and said:

38

The Attorney General's interpretation (of the 1958 Amendment) will not only
necessitate the reinstatement of the fallacious procedure known as

'preexamination' and consisting of round trips to Canada for the sole purpose of
obtaining an immigration visa, but will certainly greatly increase the number of
private bills. The Congress has repeatedly expressed its disapproval of the
'preexamination' procedure and has similarly expressed its dissatisfaction with
the mounting volume of private legislation. S.Rep.No. 1651, H.R.Rep.No.
1433, 85th Cong., 2d Sess. (1960), 2 U.S.Code Cong. & Admin.News, p. 3137.
39

Considering the ameliorating purpose of the Congress in creating the

adjustment of status remedy, and the history of successive amendments which
have steadily widened eligibility,4 it seems to me that refusal to permit
adjustment of status, for the reason given here, was an abuse of discretion.

40

Prior to the July 14, 1960 amendment to 245, the agency held that the existence
of a preconceived intention to take advantage of the adjustment of status
remedy after entry made the initial nonimmigrant entry non bona fide. Since
bona fide nonimmigrant entry was a statutory prerequisite for adjustment of
status, relief was denied. E.g., Matter of A, 8 I. & N.Dec. 655 (June 1, 1960).
The July amendment eliminated this requirement for eligibility, and in
September, 1960, in Matter of K.B.N., A-11726627, 9 I. & N.Dec. 50 (1960)
the Regional Commissioner wrote with respect to the amendment:

41

Counsel is correct in his statement that entry as a bona fide nonimmigrant is not
now a requirement for adjustment of status under the amended section 245.
Congress left that former requirement out of the present statute to obtain more
flexibility in the administration of this section of law. However, the wording
'inspected and admitted' used by Congress in the present statute does not mean
that any alien who was inspected and admitted, whether the admission was
lawful or otherwise, would be accorded the benefits of this section of law. The
Committee report accompanying H.J. 397, which later became the law, states:
'* * * only those aliens who enter the United States in good faith and without
any intention of circumventing quota restrictions of the Immigration and
Nationality Act, or any other law relating to immigration shall be entitled to the
benefits of section 245(a), as amended.' 1651, 86th Cong., 2d Sess., p. 27.

42

The significant negative factor was the circumvention of quota restrictions. No

circumvention of quota restrictions is involved in the instant case.

43

In Matter of Barrios, Int.Dec.No. 1264, 10 I. & N.Dec. 172, 174-175 (Bd. of

Immigration App.1963), the Board rejected the contention that the subjective
intention found here was sufficient to warrant denial of discretionary relief, and
said:

44

Here was are confronted solely with a matter of discretion whereas the aliens in
the cases referred to by the Service were both ineligible for relief in that they
did not enter as bona fide nonimmigrants, a statutory element no longer present
in Section 245. The only evidence we find germane to denying discretionary
relief for the reason advanced by the Service, namely, 'that it outrages all of the
orderly processes of government to reward . . . subterfuge and evasion' is the
respondent's testimony that he did not inform the consul in Switzerland of his
'intentions' at the time the nonimmigrant visa was issued. * * * There is no
showing in this record, however, that the respondent as a condition precedent to
obtaining a nonimmigrant visa was required by the consul in Switzerland to
state his ultimate 'intention' after arrival in the United States.

45

In a case decided on the same day as Barrios the Board said with respect to the
1960 amendment to 245 and with respect to the Barrios decision:

46

The amendment to section 245 (supra) was intended to broaden the scope of the
Attorney General's authority in order that he may adjust in his discretion the
status of all aliens other than alien crewmen and aliens residing in territories
adjacent to the United States who enter the United States in good faith without
any intention of circumventing the quota restrictions of the Immigration and
Nationality Act. (See Committee Report, U.S.Code, Congressional and
Administrative News, 86th Congress, 2d Session 1960 at pp. 3137, 3188 and
3147.) We have in a recent case (Barrios) adjusted the status of an alien from a
nonquota area who entered the United States as a nonimmigrant. The alien
concerned affirmatively established that although he had at some time in the
past a desire to enter the United States for permanent residence, nevertheless at
the time he secured his nonimmigrant visa he fully intended to comply with the
terms of his temporary admission unless permitted to remain in the United
States lawfully by taking advantage of a provision of the immigration laws
designed to obviate the need for departure and reentry on his part. There was no
showing in the case that the alien intended to circumvent the quota restrictions
of the Immigration and Nationality Act. Matter of Sauer, Int.Dec.No. 1265, 10
I. & N.Dec. 177, 179 (Bd. of Immigration App.1963).

47

In Matter of Tonga, Int.Dec.No. 1730, 11 I. & N.Dec. 623 (Bd. of Immigration

App.1966), the Board rejected the same contention about pre-entry intent to
apply for adjustment of status saying:

48

The respondent's statement that 'it was his intention to remain permanently in
the United States' was, as indicated by the special inquiry officer, qualified by
the phrase:-- 'if he could.' Thus limited, the respondent's recital is not
necessarily indicative of a preconceived intent to circumvent the normal

immigrant visaissuing process. Very reasonably, the appended condition could

be interpreted as a mental reservation depending for fulfillment upon future
facts and the law permitting the possibility to become a reality.
49

Matter of Tonga, supra, stands somewhat alone in the decisions of the Board
after January, 1963, however, and was in effect reversed in Matter of Tonga,
Int.Dec.No. 1730, 12 I. & N.Dec. 212 (Bd. of Immigration Appeals, 1967).
Beginning in 1964, the Board began to waiver in its adherence to Barrios. In
Matter of Diaz-Villamil, Int.Dec.No. 1330, 10 I. & N.Dec. 494, 495 (Bd. of
Immigration Appeals, 1964), for example, a case where discretionary relief was
denied because of the applicant's evasiveness, the Board said that Barrios 'at the
time he secured his nonimmigrant visa from the United States consular officer
had every intention of complying with the terms of his temporary admission
and this was not controverted.' In Matter of Rubio-Vargus, Int.Dec.No. 1466,
11 I. & N.Dec. 167 (1965), relaying on Diaz-Villamil, supra, and ignoring
Barrios, it announced the rule that attempting to circumvent foreign consular
visa issuance procedures, rather than attempting to circumvent quota
restrictions was the critical factor, and except for the first Tonga opinion it
seems to have adhered to that view since. Agency cases cited by the majority,
arising after Diaz-Villamil, though in the main distinguishable because of the
presence of other negative factors, support this view. Cases before July, 1960
are not really relevant.

50

The inexplicable departure from established policies is an indication of abuse of

discretion. Wong Wing Hang v. Immigration and Naturalization Service, supra,
360 F.2d at 719. I would hold that the inexplicable departure from the correct
interpretation of 245 announced in Barrios and Sauer, supra, is such an
indication.

51

Moreover, the agency discretion must be tested against the statutory purpose.
Pre-examination, the predecessor administrative remedy, was designed
originally, at least in part, to alleviate hardship to refugees. These, certainly, for
the most part arrive with the subjective intention of remaining permanently or
at least indefinitely. Congress intended to provide a simpler and more rational
statutory substitute for pre-examination. It would be anomalous, indeed, if that
statutory substitute were construed to permit denial of relief to persons who
were probably its intended beneficiaries. By accepting the position of the
Service and the Board, this court in effect holds that pre-entry knowledge of
and intention to avail of a duly enacted statutory remedy is a valid reason for
discretionary denial of that very remedy. Congress certainly did not intend to
vest the Attorney General's designees with so irrational a discretion.

52

Respondents rely on cases in the Sixth and Ninth Circuits as establishing that
denial of relief can be predicated on the immigrant's non-fraudulent subjective
pre-entry intention to remain. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967), cert.
denied, 393 U.S. 838, 89 S.Ct. 115, 21 L.Ed.2d 109 (1968), certainly supports
the Board's position. I think, however, that Chen v. Foley is based on a
misconception of the congressional purpose in enacting 245. The court makes
reference to the fact that Chen had twice caused the introduction in Congress of
private bills to accord him permanent residence, as tending to prove his preentry subjective intent, but makes no reference to the repeated legislative
history showing that 245 was designed to afford a simple substitute alternative
for such bills. In Castillo v. Immigration & Naturalization Service, 350 F.2d 1
(9 Cir. 1965), and Cubillos-Gonzalez v. Immigration & Naturalization Service,
352 f.2d 782, 783 (9 Cir. 1965), there were, besides subjective pre-entry intent,
additional negative factors indicating actual deception of the Service, and in
Castillo the Ninth Circuit assumed a much more restricted scope of review than
either the majority or I hold to be appropriate. If Castillo and Cubillos-Gonzalez
stand for the proposition that subjective pre-entry intent to rely on a duly
enacted statutory remedy is a 'flagrant disregard of lawful visa procedures;'
Castillo, supra, 350 F.2d at 4, I would decline to adopt that rule. Adjustment of
status seems to me a lawful alternative to consular visa processing.

53

There remain for consideration the affirmative factors in the record which
appear favorable for adjustment of status. These include the husbandpetitioner's employment here as an accountant; the birth on July 6, 1968, of an
American citizen child of petitioners' marriage; and a stipulation that the wife
would testify that great hardship would be caused to that child if it were
returned to Kabul, particularly because the kinds of baby food, medical care,
and clothing available here would not be available there. These, certainly, were
special equities, and so this case does not present the further problem whether
or not, where an applicant's record is neutral, he must show special equities to
obtain discretionary relief under 245. See Santos v. Immigration and
Naturalization Service, 375 F.2d 262 (9 Cir. 1967).

54

It may be that special inquiry officers regard a refusal to adjust status as a sort
of less severe penalty for conduct for which they might otherwise order
deportation and withhold the discretionary relief of voluntary departure. The
latter course would subject the alien to disabilities under 276 of the Act, 8
U.S.C. 1326 (1964), and a pragmatic argument can be made in favor of
allowing the Immigration and Naturalization Service unbridled discretion in
refusing 245 relief rather than encouraging imposition of more severe
disabilities. The difficulty with this argument is the underlying assumption that
the exercise of discretion under 245 is in any way related to admissibility.

Clearly it is not, for eligibility must exist before that discretion comes into
operation. We should assume that discretion under 245 should be or has been
used as a 242 and 244. 8 U.S.C. 1252 and 1254 (1964).
55

I would hold that the Board and the special inquiry officer abused their
discretion when they relied, in denying 245 relief to eligible immigrants, on the
sole adverse circumstance of the petitioners' subjective pre-entry intention to
remain here and apply for such relief. I would reverse the order of the Board of
Immigration Appeals of June 27, 1969 denying adjustment of status and remand
to that Board with a direction to approve petitioner's application for adjustment
of status. 28 U.S.C. 2347(a) (Supp. IV, 1969); 5 U.S.C. 706(1) (Supp. IV,
1969).

56

Chief Judge HASTIE joins in this dissent and also believes that the reasoning of
Judge FREEDMAN's dissent is sound.

57

Judge ALDISERT joins in this dissenting opinion.

58

FREEDMAN, Circuit Judge (dissenting).

59

I believe the Attorney General's subdelegation of the discretion conferred on

him by 8 U.S.C. 1255 is invalid because he failed to designate any policy
objectives or standards, or even relevant factors to guide those he authorized to
act in his name.

60

There is a critical difference between 1255 which authorizes the Attorney

General to grant adjustment of status as a permanent resident to an alien who
has been admitted to this country, and 1254 which authorizes him in his
discretion to suspend deportation and grant adjustment of status to an alien
ordered to be deported. This difference explains why Jay v. Boyd, 351 U.S.
345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956), which upheld the Attorney General's
delegation of his discretion under 1254, is inapplicable to the delegation of his
discretion in this case under 1255. Similarly distinguishable is United States ex
rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652
(1957), which held that the Attorney General could look for guidance in
exercising his discretion to what is now 1254. Indeed, the difference between
the two sections renders fully applicable to 1255 the criticism which Mr.
Justice Frankfurter unsuccessfully pressed in Jay v. Boyd.1

61

Let me sketch the differences between the two sections. In order to qualify
under 1254 for the discretionary suspension of deportation which was involved

in Jay v. Boyd, the applicant must prove that his deportation would result in
'extreme hardship' and in some cases in 'exceptional and extremely unusual
hardship' to him, or to his spouse, parents or child who is a citizen of the United
States or an alien lawfully admitted for permanent residence. Section 1254 thus
prescribes both the criterion of hardship and the extent to which the Attorney
General must be persuaded of its existence. It also contains a singularly
impressive check on the Attorney General's exercise of discretion in favor of
the alien. The Attorney General must report monthly to each House of
Congress all individual suspensions of deportation and the facts and the law
which prompted his grant of discretionary relief. Either House may, in most
cases, veto any suspension, and in the remaining cases, which deal with those
deportable for morally or politically evil conduct, both Houses must
affirmatively approve the Attorney General's grant of relief.2 See United States
ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 78-79, 77 S.Ct. 618, 1
L.Ed.2d 652 (1957).
62

All this is utterly unlike 1255, which merely provides that the Attorney General
shall exercise his discretion on an application by an eligible alien for an
adjustment of status. No basis whatever is prescribed for the Attorney General's
exercise of discretion; the statute simply declares that he is to act 'in his
discretion and under such regulations as he may prescribe.' (1255(a)) In
subdelegating his authority to the Board of Immigration Appeals, the Attorney
General has provided as the only guidance that 'in considering and determining
cases before it * * * the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate and necessary for
the disposition of the case.'3

63

It is this lack of any express or implicit specification of policy objectives or

standards or even relevant factors, either in 1255 or in the regulations
promulgated by the Attorney General, which makes the exercise of discretion
by his delegates an utterly unguided and unpredictable undertaking. Only the
inevitable necessity of disposing of the case is specified, like a result without a
cause. What is the desired goal and what guides should channel the course to it
receive no recognition. Nor is this an instance in which a general problem is
assigned to an official or agency and discretion vested in it in order to obtain an
expert solution and judgment.

64

Section 1255 was written with Congressional knowledge that the Attorney
General personally would not decide applications for adjustment of status but
would delegate his authority to subordinate officials. Congress was aware that
the Attorney General had established a quasi-judicial system for processing
applications seeking the discretionary relief he was authorized to grant under

the Immigration and Nationality Act. It specifically provided in 8 U.S.C. 1103

for his subdelegation of the duties and powers imposed upon him in cases such
as this. Prior to the enactment of 1255, the Attorney General had promulgated
the regulation delegating all such functions to the Board of Immigration
Appeals.4 Indeed, by the time of the 1960 amendment, it was well known that
1255 applications were far too numerous for the Attorney General to determine
them personally.5 Thus, an impersonal procedural structure has been erected
with the knowledge of Congress, but no proper authority has prescribed the
goals sought to be achieved, the factors to be considered or the weight to be
assigned them, or the burden which the applicant must carry, as a guide or
direction to those charged with administering 1255 or to the courts which are
called upon to review their action.
65

What has happened here shows the result of such a wide-open system. The
Board has held, and the majority agrees, that the refusal of adjustment of status
is justified because the aliens intended to remain here. Judge Gibbons
concludes that there was an abuse of discretion because the denial of
adjustment of status was based on this factor which in his view could no longer
be deemed significant in the exercise of discretion after Congress removed it as
an absolute bar.6 If Judge Gibbons' view had prevailed, at least one element
would now have been established, although only as a non-factor.

66

It is true that other courts of appeal have upheld the exercise of discretion under
1255.7 I would not follow these cases because they do not recognize the
distinction between 1255 and 1254.

67

I therefore would vacate the order of the Board of Immigration Appeals

denying adjustment of status to the appellants and would remand the case to the
Board to hear their application after the provision of reasonable standards by
the Attorney General.

68

Judge ALDISERT also joins in this dissenting opinion.

8 C.F.R. 242.17(d) (application for adjustment of status in deportation

proceedings) provides: 'The respondent (applicant for adjustment) shall have
the burden of establishing that he is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.'

This section provides: 'The status of an alien, other than an alien crewman, who
was inspected and admitted or paroled into the United States may be adjusted

by the Attorney General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence if (1)
the alien makes an application for such adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the time
his application is approved.'
3

See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-267, 74
S.Ct. 499, 503, 98 L.Ed. 681 (1954): 'If the word 'discretion' means anything in
a statutory or administrative grant of power, it means that the recipient must
exercise his authority according to his own understanding and conscience.' Cf.
Foti v. Immigration and Naturalization Service, 375 U.S. 217, 228-229, n. 15,
84 S.Ct. 306, 11 L.Ed.2d 281 (1963); United States ex rel. Hintopoulos v.
Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957)

Every alien is presumed to be an immigrant 'until he establishes to the

satisfaction of the consular officer, at the time of application for a visa, and the
immigration officers, at the time of application for admission, that he is entitled
to a nonimmigrant status under section 1101(a)(15) of this title.' 8 U.S.C.
1184(b). 8 U.S.C. 1101(a)(15) provides: 'The term Immigrant' means every
alien except * * * ((A)(iii)(B)) an alien * * * having a residence in a foreign
country which he has no intention of abandoning and who is visiting the United
States * * * temporarily for pleasure.'

This sentence appears at the end of a three-paragraph portion of the Report (pp.
3146, 3147 of 1960 U.S.Code Cong. & Admin.News), reading as follows:
'Section 10 of the joint resolution, as amended, would amend section 245 (a) of
the Immigration and Nationality Act which authorizes the Attorney General
under certain circumstances to adjust the status of an alien who was admitted
into the United States as a bona fide nonimmigrant to that of an alien lawfully
admitted for permanent residence. Under the proposed amendment to section
245(a) the procedure for the adjustment of the immigration status of aliens to
that of aliens lawfully admitted for permanent residence would be broadened so
as to include all aliens (other than alien crewmen) who have been inspected and
admitted or who have been paroled into the United States, thereby providing
considerably more flexibility in the administration of the law.
'The committee is aware that under the visa regulations of the Department of
State that an alien who is registered on a quota waiting list as an intending
immigrant will be issued a visitor's visa if he shows that he has to enter the
United States temporarily to attend a business conference, to undergo medical
treatment not otherwise available, or to attend to other urgent personal business.

In order to prevent abuse by mala fide nonimmigrants, existing visa regulations

require that the name of such an alien be taken off the quota waiting list if he
willfully violates his nonimmigrant status while in the United States (22 CFR
42.22(a)(2)). For example, an alien's name will be removed from the quota
waiting list if he was issued a visitor visa to attend a business conference, but
while in the United States accepted local employment or overstayed the period
of time of his admission.
'It is not intended that the enactment of this proposed legislation would have
the effect of repealing the visa regulations in this regard. It is intended that only
those aliens who enter the United States in good faith and without any intention
of circumventing quota restrictions of the Immigration and Nationality Act, or
any other law relating to immigration shall be entitled to the benefits of section
245(a), as amended.'
6

It should be remembered that any alien who applies for a nonimmigrant visa
must, as required by statute, see note 4, supra, demonstrate to the satisfaction of
the American consul in his home country and to the immigration officials upon
his arrival in the United States that he fully intends to return to his home
country. Therefore, absent an administrative error, any alien who arrives in the
United States with the fixed intention to remain permanently has
misrepresented his intention to the immigration authorities. An applicant who
has thus misled immigration officials in an attempt to circumvent established
procedures presents a weak case for the favorable exercise of the Attorney
General's discretion. There are many cases where the Attorney General has
refused to exercise favorable discretion in adjustment proceedings, based on his
finding that the nonimmigrant alien had entered the United States with the
intent to remain permanently (if he could), by applying for and successfully
pursuing adjustment of status under Section 245. Chen v. Foley, 385 F.2d 929,
935-936 (C.A. 6, 1967); Santos v. Immigration & Naturalization Service, 375
F.2d 262, 264 (C.A. 9, 1967); Castillo v. Immigration & Naturalization Service,
350 F.2d 1 (C.A. 9, 1965), aff'g Matter of Garcia-Castillo, 10 I. & N. Dec. 516
(1964), reconsideration denied, 10 I. & N. Dec. 790 (1964); Cubillos-Gonzalez
v. Immigration & Naturalization Service, 352 F.2d 782 (C.A. 9, 1965); Matter
of Muslemi, 12 I. & N. Dec. 616 (1968); Matter of Tonga, 12 I. & N. Dec. 212
(1967); Matter of Ramirez, 12 I. & N. Dec. 78 (1967); Matter of Leger, 11 I. &
N. Dec. 796 (1966); Matter of Vega, 11 I. & N. Dec. 337 (1965); Matter of
Rubio-Vargas, 11 I. & N. Dec. 167 (1965)

This decision is attached to the petitioner's motion to remand filed October 6,

1970, which was subsequently denied

In Scalzo v. Hurney, 314 F.2d 675 (3 Cir. 1963) this court held that where a

deportation order is challenged only insofar as it seeks review of the Board's

refusal to adjust status, 8 U.S.C. 1105a (1964) does not confer jurisdiction here.
That holding has apparently been overruled by necessary implication from Foti
v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11
L.Ed.2d 281 (1963); Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13
L.Ed.2d 90 (1964); and Cheng Fan Kwok v. Immigration and Naturalization
Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), affirming 381
F.2d 542 (3 Cir. 1967). Review of adjustment of status decisions made in a
hearing before a 242(b) special inquiry officer is in this court rather than in the
district court
2

See 8 U.S.C. 1105a(a)(4) (1964). Compare Wong Wing Hang v. Immigration

and Naturalization Service, 360 F.2d 715, 717 (2 Cir. 1966) with Muskardin v.
Immigration and Naturalization Service, 415 F.2d 865, 866 (2 Cir. 1969)

Possibly a different evidentiary standard applies where review is in the district

court from a decision of the District Director. Compare 'unsupported by
substantial evidence,' 5 U.S.C. 706(2)(e) (Supp. IV, 1969), with 'if supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.' 8 U.S.C. 1105a(a)(4) (1964)

Act of June 27, 1952, Pub.L. No. 82-414, 245, 66 Stat. 217, has been amended
by Act of Aug. 21, 1958, Pub.L. No. 85-700, 1, 72 Stat. 599; Act of July 14,
1960, Pub.L. No. 86-648, 10, 74 Stat. 505; Act of Oct. 3, 1965, Pub.L. No. 89236, 13, 79 Stat. 918; and Act of Nov. 2, 1966, Pub.L. No. 89-732, 1, 80 Stat.
1161

'If the Attorney General's conscience is satisfied to act on considerations that he

does not desire to expose to the light of day or to impart to an alien whose
liberty may be at stake, thereby involving the fate of an innocent family,
Congress leaves him free to do so. But Congress has not seen fit to invest his
subordinates with such arbitrary authority over the lives of mem
'* * * But, if in his wisdom the Attorney General devises a system for
delegating the means for carrying out the responsibility for which Congress has
given discretion, he cannot also delegate his discretion. * * *
'* * * The Attorney General may act on confidential information and Congress
has left him to square it with his conscience. But he cannot shelter himself
behind the appearance of legal procedure-- a a system of administrative law-and yet infuse it with a denial of what is basic to such a system.' 351 U.S. at
371-372, 76 S.Ct. at 934.

8 U.S.C. 1255(c). There is a similar provision in 8 U.S.C. 1255b pertaining

essentially to diplomatic personnel and limited to no more than fifty applicants

annually
3

8 C.F.R. 3.1(d)(1) provides:

'Powers of the Board. (1) Generally. Subject to any specific limitation
prescribed by this chapter, in considering and determining cases before it as
provided in this part the Board shall exercise such discretion and authority
conferred upon the Attorney General by law as is appropriate and necessary for
the disposition of the case.'

8 C.F.R. 3.1(b)(1), quoted supra, n. 3

The legislative history of the 1960 amendment shows that over 20,000
applications for adjustment of status under 1255 were approved annually

Act of July 14, 1960, P.L. 86-648, 10, 74 Stat. 606, amending 245 of the
Immigration and Nationality Act, 8 U.S.C. 1255, by eliminating admission to
the United States 'as a bona fide nonimmigrant' as an eligibility requirement to
adjustment of status

E.g., Jarecha v. I.N.S., 417 F.2d 220 (5 Cir. 1969); Chen v. Foley, 385 F.2d 929
(6 Cir.), cert. denied 393 U.S. 838, 89 S.Ct. 115, 21 L.Ed.2d 109 (1967); Santos
v. I.N.S., 375 F.2d 262 (9 Cir. 1967); Castillo v. I.N.S., 350 F.2d 1 (9 Cir.
1965). See also Annot., Construction and Application of 245 of the
Immigration and Nationality Act of 1952 (8 U.S.C. 1255) Authorizing
Adjustment of Status of Alien to that of Permanent Resident, 4 A.L.R.Fed. 557
(1970)