MATTER OF ALVAREZ In Deportation Proceedings A-12554381 Decided by Board December 1, 1965 An alien's appeal in deportation proceedings from an order of the special inquiry officer granting the only relief for which she applied and for which eligible (voluntary departure), was summarily dismissed and oral argument in connection therewith denied by the Board of Immigration Appeals pursuant to 8 CFR 3.1(d) (1–a). CHARGE: Order: Act of 1952-Section 241(a) (2) [8 U.S.C. 1251]-Nonimmigrant (exchange student)—remained longer. This case is before us on appeal from a special inquiry officer's order of November 10, 1965, granting the respondent's request for voluntary departure, but providing for her deportation from the United States to the Philippines on the charge contained in the order to show cause in the event of her failure to so depart. The request for oral argument on the appeal will be denied and the appeal dismissed. The record relates to a female alien, a native and citizen of the Philippines, who last entered the United States on or about September 20, 1959. She was then admitted as a nonimmigrant exchange student. She was thereafter authorized to remain in the United States in that status until March 26, 1965. She has remained here since that date without authority. The foregoing establishes the respondent's deportability on the charge contained in the order to show cause. This was conceded in the course of the hearing before the special inquiry officer, when the respondent was represented by counsel (p. 1). It is unchallenged here. The only relief requested of the special inquiry officer was voluntary departure. He honored that request, and the record before us supports his action in this respect. Further comment on the point is unnecessary. Briefly, by way of summary, deportability in this case is established and conceded. The respondent applied for and was granted the only relief available to her in the premises, to wit: voluntary departure. The sole reason given for the taking of this appeal is that the respondent desires a stay of deportation until "after she has taken the Board examinations to be held on February 9, 1966." This, however, is a matter properly for the consideration of the appropriate District Director of the Immigration and Naturalization Service, not this Board. 8 CFR 3.1(d) (1-a) provides that, notwithstanding the provisions of paragraph (e) of this section, the Board may deny oral argument concerning, and summarily dismiss, any appeal in any deportation proceeding under Part 242 of this Chapter in any case in which (i) the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal), (ii) the only reason specified by the party concerned for his appeal involves a finding of fact or a conclusion of law which was conceded by him at the hearing, or (iii) the appeal is from an order that granted the party concerned the relief which he requested. Under the foregoing circumstances, it is clear that the respondent's case falls squarely within this regulation. ORDER: It is ordered that oral argument be denied. It is further ordered that the appeal from the order entered by the special inquiry officer on November 10, 1965, be and the same is hereby dismissed. MATTER OF GEORGE AND LOPEZ-ALVAREZ In Deportation Proceedings A-12341368 A-13916420 Decided by Board December 16, 1965 Applications for adjustment of status pursuant to section 245, Immigration and Nationality Act, as amended, filed by natives of British Guiana and Honduras, respectively, prior to, and which were pending on, December 1, 1965, the effective date of the amendment of section 245 by section 13 of Public Law 89-236, which precludes such adjustment in the case of any alien who is a native of any country of the Western Hemisphere or of any adjacent island named in section 101(b) (5), must be determined under the new provisions of the statute and, therefore, must be denied. CHARGES: Order: Act of 1952-Section 241 (a) (9) [8 U.S.C. 1251(a) (9)]-Failed to comply with conditions of status-student (first respondent). Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant-remained longer (second respondent). The cases come forward pursuant to certification of the decisions in these cases dated December 1, 1965 granting adjustment of status to that of the lawful permanent residents under section 245 of the Immigration and Nationality Act. The first respondent, Dennis George, is a native of British Guiana, a subject of the United Kingdom and Colonies, 23 years old, male, who last entered the United States on January 27, 1964 and was admitted temporarily as a student until January 27, 1965. He had previously entered the United States on August 29, 1961 also as a student but failed to attend school and was placed under deportation proceedings. On August 1, 1963 he was found deportable under the provisions of section 241(a) (9) of the Immigration and Nationality Act, was granted the privilege of voluntary departure and exercised that privilege by leaving this country in December of 1963. His next and last entry was as indicated previously. Subsequent to his last entry the respondent was gainfully employed without permission of the Service. On April 8, 1964 a special inquiry officer found him subject to deportation on the charge stated in the order to show cause and granted him the privilege of voluntary departure with the further order that if he failed to depart he be deported to British Guiana on the charge contained in the order to show cause. The respondent on April 17, 1965 married a United States citizen. A motion to reopen the proceedings to consider an application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, was filed on October 27, 1965, and was granted on November 8, 1965 by the special inquiry officer. The second respondent, Julian Lopez-Alvarez, a native and citizen of Spanish Honduras, 32 years old, male, last entered the United States as a visitor for pleasure authorized to remain in the United States until June 12, 1965. He remained in the United States after June 12, 1965 without authority. Deportability under section 241(a) (2) of the Immigration and Nationality Act was conceded. Insofar as it can be ascertained from the sparse record of hearing before us, a previous application for discretionary relief was denied. At the hearing held December 1, 1965 it appears that the respondent renewed his application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act and that he is now married to a citizen of the United States who is pregnant. On October 3, 1965, section 245 of the Immigration and Nationality Act was amended by Public Law 89-236, effective December 1, 1965. Previously, section 245 had allowed adjustment of status in the case of an alien who was a native of a country of the Western Hemisphere, except contiguous territory or adjacent islands. Section 13 of the Act of October 3, 1965 amended section 245 (8 U.S.C. 1255) in pertinent part to read as follows: (c) The provisions of this section shall not be applicable to any alien who is a native of any country of the Western Hemisphere or of any adjacent island in section 101 (b) (5). The issue in these cases is whether an applicant for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, upon an application which was filed before the cut-off date of December 1, 1965, is now precluded from adjustment of status because of the fact that he is a native of a country of the Western Hemisphere. For the purpose of this discussion we will assume that a motion to reopen for adjustment of status, filed prior to December 1, 1965, is equivalent to an application for adjustment of status which was pending on December 1, 1965. House Report No. 745 (89th Cong., 1st Sess.) dated August 6, 1965 to acompany H.R. 2580 sets forth on page 22 that section 245 of the Immigration and Nationality Act, relating to adjustment of aliens in the United States, "is amended to prohibit the adjustment of status of natives of the Western Hemisphere now referred to as 'special immigrants.' The Immigration and Naturalization Service has been faced with a recurring problem in cases of natives of Central and South America who come to the United States as nonimmigrant visitors and promptly seek permanent residence under section 245." In the Committee Print (89th Cong., 1st Sess.) setting forth a Summary of Public Law 89-236 it was stated on page 5 that "under the old law only natives of contiguous territory were precluded from adjustment of status while physically present in the United States. This adjustment section of the Immigration and Nationality Act (section 245) has been amended to make natives of any country of the Western Hemisphere ineligible for adjustment of status in the United States." It is noted that this legislative history indicates that the Immigration and Naturalization Service had brought to the attention of Congress the vexatious problem arising in cases of Western Hemisphere natives, coming to the United States as nonimmigrant visitors and promptly seeking permanent residence under section 245 of the Immigration and Nationality Act inasmuch, as natives of the Western Hemisphere, they were previously held to be nonquota immigrants and an immigration visa was immediately available. The case of Foti v. Immigration and Naturalization Service involved an alien who last entered the United States as a seaman in 1950, deportation proceedings were commenced in 1959 and an application for suspension of deportation under section 244(a) (5) (8 U.S.C. 1254(a) (5)) was denied. The first Foti case, 308 F.2d 779 (2d Cir., 1962), involved a jurisdictional issue of whether judicial review of ancillary matters of discretion could be reviewed in the Circuit Court pursuant to section 106 (a) of the Immigration and Nationality Act. This issue was decided in the affirmative by the Supreme Court in Foti v. Immigration and Naturalization Service, 375 U.S. 217 (1963). The Supreme Court in note 4 took notice of the amendment of section 244 of the Act by Public Law 87-885 on October 24, 1962 which amended section 244 in pertinent part by adding the following phrase: "(f) no provision of this section shall be applicable to an alien who entered the United States as a crewman." The Supreme Court observed that although petitioner concededly entered the United States as a crewman and the Government had indicated that when the merits of the case were reached, it |