Matter of Park

Decided by Board August 25, 1975

1975年8月25日由委员会裁定

(1) The language of section 212(e) of the Immigration and Nationality Act, as amended, encompasses a person who fraudulently gains admission to the United States or ac- quires status after admission as an exchange visitor under section 101(a)(15)(J) of the Act, as amended, with the knowledge that he is being accorded such status. ; (2) Notwithstanding respondent, who was admitted to the United States as a nonimmi- grant exchange-visitor under section 101(a)(15)(J) of the Act, as amended, alleges that he obtained his nonimmigrant visa through fraud and after admission to this country never participated in the exchange program to which he was destined, he is ineligible to apply for adjustment of his status to that of a lawful permanent resident under section 245 of the Act, as amended, until he has either fulfilled the foreign residence require- ment of section 2,12(e) of the Act, as amended, secured a waiver thereof, or established that he is Otherwise exempt therefrom. Accordingly, the immigration judge was correct in denying respondent's motion to reopen td applyfbi section 245 adjustment of status.

(1) 经修正的《移民与国籍法》第212(e)条的语言，涵盖以下人员：其以欺诈方式获得进入美国，或在根据经修正的该法第101(a)(15)(J)条作为交流访问者入境后取得身份，且明知其被赋予该身份。；(2) 尽管作为根据经修正的该法第101(a)(15)(J)条获准进入美国的非移民交流访问者的被申请人声称，其通过欺诈获得非移民签证，且在进入美国后从未参加其被指定前往的交流项目，但其不符合根据经修正的该法第245条申请将其身份调整身份为合法永久居民的条件，直至其满足经修正的该法第2,12(e)条的外国居留要求、获得该要求的豁免，或证明其以其他方式豁免于该要求。因此，移民法官拒绝被申请人重新开放以申请第245条调整身份的动议是正确的。

436

436

An application for permanent resident status was previously filed by the respondent on January 2, 1973 and denied by the district director on March 15, 1973. This earlier application was superseded when the respondent filed a new Form I-485 on March 20, 1974 in conjunction with his motion to reopen.

respondent 此前曾于1973年1月2日提交永久居民身份申请，并于1973年3月15日被地区主任拒绝。当 respondent 于1974年3月20日结合其重新开庭动议提交新的 I-485 表格时，该较早的申请被取代。

2 Section 212(e) of the Immigration and Nationality Act, as amended, provides: "(e) No person admitted under section 101 (a)(15)(J) or acquiring such status after admission whose a) participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, or (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) was a national or resident of a country which the Secretary of State, pursuant to regulations prescribed by him, had designated as dearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101. (a)(15XL) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States: Provided, That upon the favor- able recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Natu- ralization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien,) or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of /nee, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of an alien whose admission to the United States is found by the Attorney General to be.in. the public interest: And provided further, That the Attorney General may, upon the favorable recommendation of the Secretary of State, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien." (Emphasis Supplied.) The program for which the respondent was admitted comes within subsection (ii) of the above provision.

2 经修正的《移民与国籍法》第212(e)条规定： “(e) 任何根据第101(a)(15)(J)条入境或入境后取得该身份的人员，如果 a) 其参加来美所参加的项目的经费全部或部分、直接或间接由美国政府机构或由其国籍国或最后居留地政府资助，或 (ii) 其在根据第101(a)(15)(J)条入境或取得身份时，是国务卿依据其制定的法规指定为明确需要该外国人从事的专门知识或技能领域人员服务的国家的国民或居民，则不得申请移民签证、永久居留，或第101(a)(15)(H)条或第101(a)(15)(L)条下的非移民签证，直至证明该人员在离开美国后已在其国籍国或最后居留地居住并实际停留累计至少2年：但前提是，经国务卿根据相关美国政府机构的请求作出有利推荐，或在移民与归化局局长认定离开美国将对外国人的配偶或子女（如果该配偶或子女是美国公民或合法居民外国人）造成特殊困难，或认定该外国人因种族、宗教或政治观点而会受到迫害以致无法返回其国籍国或最后居留地后，司法部长可以豁免该外国人两年外国居留的要求，前提是司法部长认定该外国人入境美国符合公共利益：并进一步规定，司法部长可以在外国人的国籍国或最后居留地已向国务卿提交书面声明表示对该外国人的此类豁免无异议的任何案件中，经国务卿有利推荐，豁免该两年外国居留要求。”（着重号为原文所加。）respondent 入境所参加的项目属于上述条款的(ii)小节。

3 This view applies to instances involving fraud on the alien's part, and should be distinguished from situations in which it is claimed that exchange visitor status was merely erroneously accorded, or that the alien was misled into accepting it, or that his acceptance of the status was not voluntary. See, e.g. Matter of Wojcik, 11 1. & N. Dec. 603 (3 IA 1966); De Guzman v. INS, 389 F.2d 360 (C.A. 7, 1968); Campbell v. Esperdy, 287 F. Soup. 92 (S.D.N.Y. 1968); Matter of Koryzma, 13 I. & N. Dec. 358 (BIA 1969); Hazer v. INS, 420 F.2d 3i7 (C.A. 9, 1970).

3 该观点适用于涉及外国人一方欺诈的情形，应与以下情形相区别：仅声称交流访问者身份被错误赋予，或外国人被误导接受该身份，或其接受该身份并非自愿。见，例如 Matter of Wojcik, 11 1. & N. Dec. 603 (3 IA 1966); De Guzman v. INS, 389 F.2d 360 (C.A. 7, 1968); Campbell v. Esperdy, 287 F. Soup. 92 (S.D.N.Y. 1968); Matter of Koryzma, 13 I. & N. Dec. 358 (BIA 1969); Hazer v. INS, 420 F.2d 3i7 (C.A. 9, 1970)。