Matter of Palmieri (Board decision, February 19, 1963)

Plain-English summary

The respondent, an Italian citizen, stayed in the United States after his visitor admission expired. He applied to adjust his status while the third preference portion of the Italian visa quota was open, but the quota was oversubscribed by the time officials decided his application. The Board held that adjustment could not be granted retroactively because an immigrant visa had to be immediately available when the application was approved. It also found no abnormal administrative delay and said it lacked authority to set the terms of voluntary departure. The Board dismissed the appeal, leaving the grant of voluntary departure and conditional deportation order in place.

Decision snapshot

• Cited authorities: Immigration and Nationality Act §§ 201(c), 203(a), 241(a)(2), 245; 8 C.F.R. §§ 242.17, 244.2, 245.2.
• Outcome: Appeal dismissed; adjustment denied and voluntary departure retained.
• Key point: A visa that was available when an adjustment application was filed was insufficient if the quota had closed by the time approval was considered.

Full text (BIA official public release)

Interim Decision #1267

MATTER OF PALMIERI

In DEPORTATION Proceedings

A-12302174

Decided by Board February 19, 1963
(1) An alien's application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, filed simultaneously with a petition for third-preference status at a time when the quota was open, but on which final action by the district director was completed after the quota had closed, may not be approved nunc pro tunc by the special inquiry officer in de novo consideration of application in deportation proceedings since as of the date of consideration an immigrant visa was not immediately available to the alien as required by subsection (a) (3) of section 245. (2) The setting of the terms and conditions for voluntary departure is not within the jurisdiction of the Board of Immigration Appeals (8 CFR 244.2). (See also, Matter of Irie, Int. Dec. No. 1304.) CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251]—Nonimmigrant (tem- porary visitor for pleasure)—remained longer.

In a decision dated December 10, 1962, the special inquiry officer denied the respondent's request for adjustment of his status, ante; granted his application for voluntary departure; and provided for his deportation on the above-stated charge in the event of his failure to so depart. The appeal from that decision, which brings the case before this Board for consideration, will be dismissed. The record relates to a 21-year-old single male alien, a native and citizen of Italy. He last entered the United States on or about Octo- ber 5, 1961. He was then admitted as a temporary visitor for pleasure for a period which, with extensions, was to run until July 5, 1962. He has remained in the United States since the expiration of the tempo- rary period of his admission without authority. Accordingly, his deportability on the above-stated charge is established. On April 19, 1962, the respondent submitted an application for adjustment of his status under section 245 of the Immigration and Nationality Act, with accompanying documents. At the same time,

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a petition to have him accorded third preference status under the Italian quota, filed in his behalf by his legally resident alien father, was also submitted. Both the application and the petition were re- ceived by the Service on the following day, April 20, 1962. On June 20, 1962, the respondent was accorded a hearing and exami- nation in connection with his application for adjustment of status. On the following day, June 21, 1962, he was notified that his father's petition in his behalf had been approved. On August 20, 1962, the District Director denied his application for adjustment of status under section 245 of the Immigration and Nationality Act, on the ground that the third preference portion of the Italian quota was then oversubscribed. On November 26, 1962, deportation proceedings were instituted against the respondent by the issuance and service upon him of an order to show cause charging him with deportability on the above- stated ground. In the course of the hearing conducted thereunder, held on December 10, 1962, the respondent renewed his request for adjustment of status under section 245 of the Immigration and Na- tionality Act. It was denied by the special inquiry officer, for the same reason it was previously denied by the District Director. The basis of the special inquiry officer's denial, as well as that of the District Director previously, was a Department of State Visa Office Bulletin in effect at the time of the decisions showing the third preference portion of the Italian quota to be oversubscribed for a period of approximately 10 years. The respondent concedes that this was the case. However, he points to Department of State Visa Office Bulletin
#93, dated April 2, 1962, showing that as of the date of its issuance the third preference portion of the Italian quota was current. He stresses that this situation continued until Visa Office Bulletin #93 (supra) was cancelled by the issuance of Department of State Visa Office Bulletin #96, dated June 4, 1962. The latter shows that as of July 1, 1962, the third preference portion of the Italian quota was unavailable to applicants or petitioners who had filed for such status subsequent to December 1, 1953.¹ He argues that, on the basis of the foregoing, his application could have been granted at any time prior to July 1, 1962, because a visa was then available to him. He contends that his petition and appli- cation should have been processed within that period of time, and that failure in the administrative process in this respect was unduly preju-

¹ Department of State Visa Office Bulletin #104 of January 2, 1963, now sets this date as March 1, 1955.

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for such relief and granted it. There is no merit in respondent's re- quest that we return his case to the special inquiry officer or the Dis- trict Director with instructions to grant voluntary departure with an indefinite time for departing, on the basis of the equitable and humani- tarian factors in the case previously pointed up. Under the regula- tions (8 CFR 244.2), the setting of the terms and conditions for vol- untary departure is not properly a function of this Board. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

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