Matter of Patel

Interim Decision #2842

临时决定第2842号

(3) Notwithstanding eligibility for adjustment of status under section 245 of the Act, 8 U.S.C. 1255, the respondent's application for such relief was denied as a matter of discretion where he had worked without authorization during the 3-year period in which he was classified as a nonimmigrant student, knowing that his employment was unlawful, and on three separate occasions he had deliberately made false statements afloat that employment in applications for benefits under the Act. .

(3) 尽管根据该法第245条、8 U.S.C. 1255有资格调整身份，但被申请人的此类救济申请作为裁量事项被拒绝，因为他在被归类为非移民学生的3年期间未经授权工作，明知其就业不合法，并且三次在不同的场合下在根据该法提交的福利申请中故意就该就业作出虚假陈述。

In a decision dated March 8, 1977, an immigration judge found the respondent deportable as charged, denied an application from the respondent for adjustment of status under section 245 of the Immigra- tion and Nationality Act, 8 U.S.C. 1255, denied an application from the respondent for the privilege of voluntary departure in lieu of deporta-

在1977年3月8日的一项决定中，一名移民法官认定被申请人如所指控的那样可被驱逐出境，拒绝了被申请人根据《移民与国籍法》第245条、8 U.S.C. 1255提出的调整身份申请，拒绝了被申请人提出的以自愿离境代替驱逐出境的特许申请，

Interim Decision #2842

临时决定第2842号

tion, and ordered him deported to India. The respondent has appealed. The appeal will be dismissed in part and sustained in part. The respondent is a 34-year-old native and citizen of India who was admitted to the United States on June 11, 1971, as a nonimmigrant student authorized to remain in the United States until June 11, 1972. He subsequently obtained extensions of his stay which authorized him to remain until June 11, 1975. On July 8, 1974, the respondent filed an application for adjustment of status to that of a permanent resident under section 245 of the Act at the office of an Immigration and Naturalization Service District Director. To avoid the labor certification requirement that would otherwise have been applicable to him under section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), he claimed that he was entitled to an exemp- tion from that requirement as an investor pursuant to 8 C.F.R. 212.8(b)(4). In support of the application, he submitted documents to show, inter edict, that he had invested $11,000 in a motel. The District Director denied the respondent's application in a decision dated May 22, 1975, on the ground that the respondent had only leased the motel and, therefore, he was not entitled to an exemption from the labor certification requirement as an investor. The respondent then purchased the motel on August 25, 1975, and filed a motion with the District Director for reconsideration of the application for permanent residence. On February 12, 1976, the District Director issued an Order to Show Cause which alleges that the respondent is deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), on the ground that he has remained in the United States beyond June 11, 1975, without permission. On March 8, 1977, the respondent appeared before the immigration judge at a deportation hearing, and, with the assistance of an attorney, he admitted that he was deportable as charged in the Order to Show Cause. Accordingly, we are satisfied that the respondent's deportabil- ity has been established by evidence that is clear, convincing, and unequivocal. The respondent also renewed his application for adjustment of status under section 245 of the Act to that of a permanent resident, claiming again that he was exempt from the labor certification re- quirement as an investor. The provisions of 8 C.F.R. 212.8(b)(4) were amended, effective October 7, 1976, but we shall consider this case under the prior version of the regulation, the one which was in effect when the respondent first applied for classification as an investor. The applicable version of this regulation provides that

并命令将其驱逐至印度。被申请人已提出上诉。上诉将部分驳回、部分支持。 被申请人是34岁的印度本土出生公民，于1971年6月11日作为非移民学生获准进入美国，获准在美国停留至1972年6月11日。他随后获得了停留延期，获准停留至1975年6月11日。 1974年7月8日，被申请人在移民与归化局地区主任办公室根据该法第245条提交了调整身份为永久居民的申请。为避免根据该法第212(a)(14)条、8 U.S.C. 1182(a)(14)原本将适用于他的劳工证要求，他声称其有权根据8 C.F.R. 212.8(b)(4)作为投资者豁免该要求。为支持该申请，他提交了文件，以显示（除其他事项外）他已在一家汽车旅馆投资$11,000。地区主任在1975年5月22日的一项决定中拒绝了被申请人的申请，理由是被申请人仅租赁了该汽车旅馆，因此无权作为投资者豁免劳工证要求。被申请人随后于1975年8月25日购买了该汽车旅馆，并向地区主任提交了要求重新考虑永久居民申请的动议。 1976年2月12日，地区主任签发了说明理由令，指称被申请人根据该法第241(a)(2)条、8 U.S.C. 1251(a)(2)可被驱逐出境，理由是他未经许可在1975年6月11日之后仍留在美国。 1977年3月8日，被申请人在驱逐出境听证会上出现在移民法官面前，并在律师协助下承认其如说明理由令所指控的那样可被驱逐出境。因此，我们确信被申请人的可驱逐性已由清楚、令人信服且明确的证据确立。 被申请人还重新提出了根据该法第245条调整身份为永久居民的申请，再次声称其作为投资者豁免劳工证要求。 8 C.F.R. 212.8(b)(4)的规定已于1976年10月7日修正生效，但我们将根据该规定的先前版本审理本案，即被申请人首次申请投资者分类时有效的版本。该规定的适用版本规定：

598

598

Interim Decision #2842

临时决定第2842号

The following persons are not considered to be within the purview of section 212(a)(14) of the. Act and do not require a labor certification: ... (4) an alien who establishes on Form I-526 that he is seeking to enter the United States for the purpose of engaging in a commercial or agricultural enterprise in which he has invested, or is actively in the process of investing. =Fitzl totaling at least $10,000. and who establishes that he has had at least 1 year's experience or training qualifying him to engage in such enterprise. The respondent submitted documents at the deportation hearing which establish that he leased a motel on June 25, 1974, for a period of 3 years, with an option to purchase it, and that on August 25, 1975, he purchased the motel making a $12,000 cash down payment towards a purchase price of $49,300. The down payment included $11,000 that he had submitted as a deposit when he leased the motel. With regard to his experience as a manager, the respondent testified that he had been an assistant manager at a hotel in. India from the middle of 1969, until the end of 1970, and that he had managed his motel since June of 1974, when he acquired possession of it through the lease agreement. The respondent testified further that he had not employed anyone at the motel until January of 1977, when he hired a part -time maid (Tr. 12, 40). The Service trial attorney introduced two applications that the respondent had submitted to the Service, for extensions of his stay in the United States as a student, and a biographical form that he had submitted with his first application for permanent resident status on July 8, 1974. The respondent verified that his signature was on these documents and admitted that statements in them about his employ- ment in the United States were false. The extension applications state in that regard that he had not worked in the United States, and the other document states that he had not worked in the United States until June of 1974, when he became the manager of his motel. The respondent explained that he had worked in the United States since August of 1971, and that he had denied that employment because it was illegal and he thought that his applications would not be granted if he revealed the truth (Tr. 29 -31). The immigration judge found that the respondent had invested capital totaling at least $10,000 in a motel business and that he had had at least 1 year's experience qualifying him to engage in such an enterprise. He found further, however, that the respondent's business was an owner-operated, one-person enterprise that did not tend to expand employment opportunities in this country, and that the re- spondent was probably displacing an American worker who might otherwise be managing the motel. The immigration judge concluded that the respondent had not established eligibility for investor classifi-

下列人员不被视为属于该法第212(a)(14)条的范围，且不需要劳工证：……(4) 在I-526表格上确立其寻求进入美国是为了从事其已投资或正在积极投资过程中的商业或农业企业的外侨，投资总额至少$10,000，且确立其拥有至少1年使其有资格从事此类企业的经验或培训。 被申请人在驱逐出境听证会上提交的文件确立：他于1974年6月25日租赁了一家汽车旅馆，期限为3年，并附有购买选择权；并且他于1975年8月25日购买了该汽车旅馆，就$49,300的购买价支付了$12,000现金首付款。该首付款包括他在租赁该汽车旅馆时作为押金提交的$11,000。 关于其作为管理人员的经验，被申请人作证称，他自1969年中期至1970年底在印度一家酒店担任助理经理，并且自1974年6月通过租赁协议取得该汽车旅馆的占有以来一直管理该汽车旅馆。 被申请人进一步作证称，在1977年1月雇用一名兼职女佣之前，他未在该汽车旅馆雇用任何人（Tr. 12, 40）。 移民局庭审律师提交了两份被申请人向移民局提交的申请，即作为学生延长其在美国停留期的申请，以及他于1974年7月8日随其第一份永久居民身份申请提交的履历表。被申请人确认这些文件上有其签名，并承认其中关于其在美国就业的陈述是虚假的。延期申请在这方面称其未在美国工作，另一份文件称其在1974年6月成为其汽车旅馆的经理之前未在美国工作。被申请人解释说，他自1971年8月起就在美国工作，他否认该就业是因为其不合法，并且他认为如果透露真相，其申请将不会获准（Tr. 29-31）。 移民法官认定，被申请人在一家汽车旅馆业务中投资了总额至少$10,000的资本，并且其拥有至少1年使其有资格从事此类企业的经验。然而，他进一步认定，被申请人的企业是业主经营的一人企业，不会倾向于扩大该国的就业机会，并且被申请人很可能取代了原本可能管理该汽车旅馆的美国工人。移民法官得出结论，被申请人未确立投资者分类的资格，

cation, citing this Board's decision in Matter of Ruangswang, 16 I&N Dec. 76 (BIA 1976). He also found that the respondent was not entitled to a favorable exercise of discretion in any event inasmuch as he had worked in violation of the Act from the beginning of his stay in the United States, he had filed applicationsr for extensions of his stay stating falsely that he had not worked in the United States, and he had obtained extensions of his stay on the basis of these false statements. Accordingly, the immigration judge denied the respondent's applica- tion for adjustment of status. The immigration judge then denied the respondent's application for voluntary departure as a matter of discre- tion in view of these adverse factors. On appeal, the respondent contends that he has satisfied all of the criteria set forth in 8 C.F.R. 212.8(b)(4), and, therefore, that he has established eligibility for investor classification. Secondly, he contends that the circumstances in his case warrant a favorable exercise of discretion on his application for adjustment of status or, in the al- ternative, on his application for voluntary departure in lieu of deportation. Pursuant to section 245 of the Act, the status of a deportable alien may be adjusted to that of an alien lawfully admitted for permanent residence. To be eligible for such relief from deportation, however, the alien must be admissible to the United States for permanent residence. Section 245(a)(2). Since the respondent would have to enter as a nonpreference immigrant who intends to perform skilled or unskilled labor, he would be excludable under section 212(a)(14) of the Act unless he were to establish an exemption from those requirements as an investor pursuant to 8 C.F.R. 212.8(b)(4). Consequently, his application for adjustment of status must be denied if he has not established eligibility for classification as an investor under 8 C.F.R. 212.8(b)(4). In interpreting a version of 8 C.F.R. 212.8(b)(4) that preceded the version quoted above, we held in Matter of Heitland, 14 I&N Dec. 563 (BIA 1974), that in addition to satisfying the requirements specifically set forth in the regulation, an alien had to show also that his invest- ment tended to expand job opportunities in the United States, or that it was of a nature which insured that his primary function with respect to the investment would not be as a skilled or unskilled laborer. Then, in Matter of Ruangswang, supra, we held that those additional require- ments also applied to aliens seeking investor classification under the version before us in this case. Our decision in Matter of Ruangswang was reversed by the Ninth Circuit in Ruangswang v. INS, 591 F.2d 39 (9 Cir. 1978). The Ninth Circuit's reversal, however, was based on lack of notice. The Court held that because the Ruangswangs had made their investment prior to the Heitland decision, supra, they had not had proper notice of the Heitland requirements, and the requirements,

引用了本委员会在Matter of Ruangswang, 16 I&N Dec. 76 (BIA 1976)一案中的裁决。他还认定，无论如何，被申请人均无权获得有利的自由裁量，因为其自停留美国之初即违反该法工作，其在申请延长停留时虚假陈述未在美国工作，并基于该等虚假陈述获得停留延期。因此，移民法官驳回了被申请人的调整身份申请。鉴于上述不利因素，移民法官随后作为自由裁量事项驳回了被申请人的自愿离境申请。 在上诉中，被申请人主张其已满足8 C.F.R. 212.8(b)(4)规定的所有标准，因此已确立投资者类别的资格。其次，其主张本案情形值得对其调整身份申请，或作为替代，对其替代驱逐出境的自愿离境申请，作出有利的自由裁量。 根据该法第245条，可驱逐外国人的身份可以调整为合法获准永久居留的外国人身份。然而，要获得此类免于驱逐出境的救济资格，该外国人必须可被接纳进入美国永久居留。第245(a)(2)条。由于被申请人将须以打算从事技术性或非技术性劳动的非优先移民身份入境，除非其依据8 C.F.R. 212.8(b)(4)确立作为投资者的豁免，否则其将依该法第212(a)(14)条被排除。因此，如果其未依据8 C.F.R. 212.8(b)(4)确立投资者分类资格，其调整身份申请必须被驳回。 在解释上述引用版本之前的8 C.F.R. 212.8(b)(4)版本时，我们在Matter of Heitland, 14 I&N Dec. 563 (BIA 1974)中认定，除满足该法规明确规定的各项要求外，外国人还须表明其投资倾向于扩大美国的就业机会，或者其投资性质确保其与投资相关的主要职能不会是技术性或非技术性劳工。随后，在Matter of Ruangswang, supra中，我们认定该等附加要求同样适用于依据本案所涉版本寻求投资者分类的外国人。我们在Matter of Ruangswang中的裁决被第9巡回法院在Ruangswang v. INS, 591 F.2d 39 (9 Cir. 1978)中推翻。然而，第9巡回法院的推翻是基于缺乏通知。法院认定，由于Ruangswang夫妇在Heitland裁决之前即已作出投资，其未获得关于Heitland要求的适当通知，因此该等要求

Interim Decision 112842

临时裁决112842

therefore, should not have been applied to them. Subsequently, in Matter of Wang, 16 I&N Dec. 711 (BIA 1979), another case arising in the Ninth Circuit, we distinguished the Ninth Circuit's Ruangstvang opinion holding that an alien who had made an investment more than a year after Heitland was decided had had adequate notice of its requirements and had to comply with them. However, the Ninth Circuit has recently rendered another decision which holds that the Heitland requirements cannot be added to the terms of the regulation even where there has been ample notice. Patel v. INS, 638 F.2d 1199 (9 Cir. 1980). Accordingly, since the present case arose in the Ninth Circuit, the Heitland requirements will not be applied in determining whether the respondent has established eligibility for classification as an investor. Consequently, on the basis of the immigration judge's finding that the respondent bas satisfied the specific criteria set forth in 8 C.F.R. 212.8(b)(4), we conclude that the respondent is eligible for investor classification. Nevertheless, although the immigration judge's basis for finding that the respondent was not eligible for adjustment of status has now been removed, it does not follow that his application must be granted. The grant of an application for adjustment of status under section 245 is a matter ©f administrative grace. An applicant has the burden of showing that discretion should be exercised in his favor. Matter of Marques, 16 I&N Dec. 314 (BIA 1977); Matter of Leung, 16 I&N Dec. 12 (BIA 1976); Matter ofArai, 13 I&N Dec. 494 (BIA 1970); Matter of Ortiz- Prieto, 11 I&N Dec. 317 (BIA 1965). Moreover, where adverse factors are present, it may be necessary for the applicant to offset those factors by a showing of unusual of even outstanding equities_ Matter of Arai, supra. In this case, the respondent worked without authorization during the entire 2 —year period in which he was classified as a nonimmigrant student, knowing that his employment was unlawful, and on three separate occasions he deliberately made false statements about that employment in applications for benefits under the Act. We find that the respondent has not presented any equities which are sufficient to warrant relief from deportation under section 245 of the Act in view of those adverse factors and conclude, therefore, that the immigration judge's denial of the respondent's application for adjustment of status as a matter of discretion was correct. Accordingly, the respondent's appeal will be dismissed to the, extent that it relates to the immigra- tion judge's denial of the adjustment application. We find further, however, that the limited privilege of voluntary departure is warranted in the circumstances of this case. Conse- quently, to the extent that the respondent's appeal addresses the

不应适用于其。随后，在Matter of Wang, 16 I&N Dec. 711 (BIA 1979)中，另一件产生于第9巡回法院的案件，我们区分了第9巡回法院的Ruangstvang意见，认定在Heitland裁决后一年多才作出投资的外国人已获得关于其要求的充分通知，必须遵守该等要求。然而，第9巡回法院最近作出另一项裁决，认定即使已有充分通知，Heitland要求也不能被附加到法规条款中。Patel v. INS, 638 F.2d 1199 (9 Cir. 1980)。 因此，由于本案产生于第9巡回法院，在确定被申请人是否已确立投资者分类资格时，将不适用Heitland要求。因此，基于移民法官认定被申请人已满足8 C.F.R. 212.8(b)(4)规定的具体标准，我们认定被申请人具备投资者分类资格。 然而，尽管移民法官认定被申请人不具备调整身份资格的依据现已被移除，但这并不意味着其申请必须被批准。根据第245条批准调整身份申请属于行政恩惠事项。申请人负有证明应对其有利行使自由裁量的责任。Matter of Marques, 16 I&N Dec. 314 (BIA 1977); Matter of Leung, 16 I&N Dec. 12 (BIA 1976); Matter ofArai, 13 I&N Dec. 494 (BIA 1970); Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965)。此外，在存在不利因素的情况下，申请人可能需要通过表明不寻常甚至杰出的衡平因素来抵消该等因素。Matter of Arai, supra。 在本案中，被申请人在其被归类为非移民学生的整个2年期间未经授权工作，明知其就业违法，并且三次在依据该法提出的福利申请中故意就该就业作出虚假陈述。我们认定，鉴于该等不利因素，被申请人未提出任何足以 warrant 根据该法第245条获得免于驱逐出境救济的衡平因素，因此认定移民法官作为自由裁量事项驳回被申请人的调整身份申请是正确的。因此，被申请人上诉中与移民法官驳回调整申请相关的部分将被驳回。 然而，我们进一步认定，在本案情形下，有限的自愿离境特权是有 warrant 的。因此，就被申请人上诉涉及

immigration judge's denial of voluntary departure, it will be sustained. Accordingly, the following order will be entered. ORDER: The respondent's appeal from the immigration judge's denial of relief under section 245 of the Act is dismissed. FURTHER ORDER: The respondent's appeal from the immigra- tion judge's denial of voluntary departure is sustained. FURTHER ORDER: The respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respond- ent shall be deported as provided in the immigration judge's order.

移民法官驳回自愿离境的部分而言，将予维持。 因此，将作出以下命令。 命令：被申请人就移民法官驳回该法第245条项下救济提出的上诉被驳回。 进一步命令：被申请人就移民法官驳回自愿离境提出的上诉被维持。 进一步命令：准许被申请人在本命令作出之日起30日内或地区局长可能批准的超过该时间的任何延期内自愿离开美国；如未能如此离境，被申请人应按照移民法官的命令被驱逐出境。