nonimmigrant visitor for pleasure, authorized to remain in the United States in such status until January 15, 1965. The respondent's initial application for adjustment of status to that of a permanent resident filed at the Miami office of the Service on December 2, 1964 was subsequently denied by the Service. The aforementioned application was subscribed and sworn to by the respondent on December 16, 1964 and on the same date the respondent in an affidavit subscribed and sworn to before an officer of the Service deposed that when applying for his immigrant visa in Chile he advised the United States Consul that he would like to visit the United States for six months. The respondent stated he resigned his position as a police officer in Chile on August 1, 1964 and obtained his nonimmigrant visa on September 15, 1964; that he purchased a round-trip ticket for his passage from Chile to the United States and return. He asserted that he secured a Social Security card within ten days. after his arrival in the United States and has been gainfully employed in a laundry in Miami, Florida since November 1, 1964 at which time he returned the unused portion of his ticket to his wife in Chile to be redeemed.

Deportation proceedings were instituted against the respondent on March 23, 1965 when the order to show cause was served upon him. A hearing in deportation proceedings was held at Miami, Florida on April 7, 1965 at which time the respondent through counsel admitted the truth of the several factual allegations set forth in the order to show cause and conceded deportability on the charges stated therein. The respondent renewed his application for adjustment of status to that of a permanent resident under section 245 of the Immigration and Nationality Act (p. 3). The respondent testified his wife and three children are natives, citizens and residents of Chile (p. 4). Counsel during the deportation hearing advised the special inquiry officer that he had mistakenly admitted the truth of allegations 6 and 7 in the order to show cause. Counsel and the respondent admitted the truth of the remaining allegations in the order to show cause and conceded that the respondent is subject to deportation under the provisions of section 241 (a) (2) of the Immigration and Nationality Act. The evidence of record clearly establishes that the respondent is subject to deportation under the provisions of section 241(a) (2) of the Immigration and Nationality Act, in that, he has remained in the United States for a longer time than authorized.

The sole issue for our consideration is whether the respondent's application for adjustment to that of a permanent resident under section 245 of the Immigration and Nationality Act merits favorable exercise of the Attorney General's discretion. This Board has con

sistently held that the extraordinary discretionary relief provided in section 245 of the Act can only be granted in meritorious cases; that the burden is always upon the alien to establish that his application for such relief merits favorable consideration (8 CFR 242.17(d); cf. Matter of G-, 9 I. & N. Dec. 938). Section 245 of the Immigration and Nationality Act provides that the status of an alien *** may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe ***. Hence, the grant of an application for adjustment of status as provided in section 245 of the Act is discretionary with the Attorney General. The facts detailing the respondent's travelling to New York, New York, immediately after his arrival in the United States and his returning to Miami, Florida, where he secured gainful employment, as well as the remaining facts in this case, have been fully and adequately covered by the special inquiry officer and need no further discussion herein.

After an exhaustive study of this record, it is our considered opinion that the respondent's explanation of what he meant when he stated "tourist to stay" in answering Question 7 on his 245 application is credible and reasonable. In this connection, the respondent testified that his application was filled out by a 12-year-old boy who understood the English language. The respondent testified that the answers to the questions set forth in his application for adjustment of status to that of a permanent resident were furnished by him (Form I-485, Ex. 3). We find nothing in this record that in any manner indicates that the respondent intended to circumvent the normal immigration visa-issuing process when he applied for and obtained his nonimmigrant visa at the office of the United States Consul in Santiago, Chile. Counsel on appeal urged that the respondent's immigrant status be adjusted to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act inasmuch as he is eligible therefor and is a person of good moral character. It appears that the respondent is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Likewise, it appears that an immigrant visa will be immediately available to the respondent if his application for adjustment of status is approved. However, the applicable statute does not contemplate that all aliens who meet the required legal standards will be granted adjustment of status to that of a permanent resident since the grant of an application for adjustment of status is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised by the Attorney General even though statutory prerequisites have been met. Moreover, the

respondent has no close family ties or dependents living in the United States and as previously noted his wife and three children are natives, citizens and residents of Chile. We find that there are no outstanding equities in this case.

After carefully considering the entire record, together with counsel's representations on appeal, the decision of the special inquiry officer will be affirmed. The grant of the discretion provided in Section 245, supra, must be reviewed against all the evidence present in this record and, when so viewed, we do not think that the special inquiry officer's denial of the respondent's application for adjustment of status to that of a permanent resident was unreasonable or unjustified. It is our considered opinion that this case does not meet or measure up to the standards required for an approval of an application for adjustment of status to that of a permanent resident as provided in section 245, supra. Accordingly, the following order will be entered.

ORDER: It is ordered that the appeal be dismissed.

MATTER OF PERALTA

In Deportation Proceedings

A-4762365

Decided by Board October 4, 1965

As respondent, a native and citizen of the Philippine Islands who was admitted to the United States for permanent residence in 1928, lost his U. S. nationality on July 4, 1946 when The Philippines became an independent country, he is deportable from the United States under section 241(a)(1), Immigration and Nationality Act, as amended, since at the time of his last entry in 1950 as a returning resident he was an alien excludable under section 3 of the Immigration Act of 1917, as amended, because of his conviction in 1936 of the crime of robbery in the first degree. Although a U. S. national at the time of his conviction in 1936, pursuant to section 8(a)(1) of the Philippine Independence Act of March 24, 1934, respondent was to be considered as if he were an alien for the purposes of the Immigration Act of 1917. CHARGE:

Order: Act of 1952-Section 241(a) (1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under section 3, Immigration Act of 1917 [8 U.S.C. 136 (e), 1946 Ed.]-convicted of crimerobbery in the first degree.

This case is before us on the appeal of the trial attorney from the special inquiry officer's order of April 19, 1965, terminating the deportation proceeding.

The respondent is a 56-year-old married male, native and citizen of the Philippines, who was admitted to the United States for permanent residence on September 19, 1928. He last entered the United States on January 15, 1950 at which time he presented a reentry permit. He was convicted of robbery in the first degree on May 8, 1936 and was sentenced to a term of five years to life, being paroled on February 5, 1940.

On October 6, 1958, a special inquiry officer concluded that the respondent was deportable on the charge stated above and directed. his deportation. Subsequently, we dismissed his appeal. In 1961 the respondent applied for adjustment of his immigration status under 8 U.S.C. 1255 but the application was denied by the District

Director, the denial being affirmed by the Regional Commissioner on appeal. Thereafter, counsel submitted a motion for the purpose of securing reconsideration of the respondent's application under 8 U.S.C. 1255. On March 17, 1965, we reopened the deportation hearing. Following the reopened hearing, the special inquiry officer entered his above-mentioned order of April 19, 1965 terminating the proceeding. The sole issue is whether this action was correct.

In his decision (pp. 2 and 3), the special inquiry officer stated that the respondent was a national of the United States when he last entered the United States and that he is charged with deportability on the ground that he was excludable under section 212(a) (9) of the Immigration and Nationality Act [8 U.S.C. 1182 (a) (9)]. In quoting from the latter statutory provision, the special inquiry officer emphasized the language reading "Aliens who have been convicted." Actually, the respondent last entered the United States on January 15, 1950. He lost his United States nationality on July 4, 1946 when the Philippines became an independent country. Hence, it is clear that he was an alien at the time of his last entry. In addition, deportability is not based on excludability under 8 U.S.C. 1182(a) (9) but on excludability under section 3 of the Immigration Act of 1917 which employs the language "persons who have been convicted."

As a basis for terminating the deportation proceeding, the special inquiry officer cited Rabang v. Boyd, 353 U.S. 427 (1957), and Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964). In the first case, it was held that a person who was a national of the United States, by virtue of birth in the Philippine Islands, became an alien on July 4, 1946 regardless of the fact that he had permanent residence in continental United States on that date. The court concluded that Rabang was deportable on the basis of a narcotic conviction in 1951. The Costello case involved a deportation proceeding under 8 U.S.C. 1251(a) (4) based on two convictions after entry. The court held that this statutory provision did not apply to a person who was a naturalized citizen of the United States at the time he was convicted but who was later denaturalized.

There is an important distinction between the Costello case and that of the respondent in view of section 8(a) (1) of the Philippine Independence Act of March 24, 1934 [48 Stat. 456; 48 U.S.C. 1238, 1940 ed.], which became effective on May 1, 1934. It was there provided as follows: "For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13 (c)), this section, and all other laws of the United States relating to the immi