temporary visitor for pleasure. His status was subsequently changed to that of a nonimmigrant student. He was thereafter authorized to remain in the United States in the latter status until September 1, 1966.

At the hearing before the special inquiry officer, the respondent contended that he was still attending school. It was, however, established that the school which he was then attending and had recently enrolled in was not the school which had been approved by the Immigration and Naturalization Service as the institution of learning he was to attend as a student. Also, the respondent had obtained no permission to change from one school to another. He had attended the school that had been approved for him only one day because he did not like the school.

The respondent has conceded the correctness of the facts hereinbefore recited. They establish his deportability on the charge contained in the order to show cause. The respondent's deportability has, in fact, now been conceded. This aspect of the case requires no further discussion."

The special inquiry officer has granted the respondent's alternative request for voluntary departure. Suffice it to say, in this connection, that the record before us supports said official's action in this respect.

The only remaining issue is whether the special inquiry officer has properly denied the respondent's basic request for adjustment of his status to that of a permanent resident. Our answer is in the affirmative, for the reasons hereinafter set forth. In reaching this decision, we have considered and rejected the respondent's contention that the special inquiry officer erred in failing to:

(1) assume jurisdiction over the question of the respondent's eligibility for sixth preference status; or

(2) defer his decision pending action by the District Director in connection therewith.

The respondent is allegedly presently employed as a tile setter, brick layer and stonemason. Just prior to the hearing before the special inquiry officer, the respondent submitted to the Immigration and Nationalization Service a petition filed by his employer to have him accorded sixth preference status under the Italian quota, on the basis of such employment. Despite the fact that said portion of the Italian quota appeared to be current, the Service did not accept the petition, but instead returned it to the respondent. The reason was that a labor clearance certificate was not submitted with the visa petition. In that posture of the case, then, the special inquiry officer ruled the respondent ineligible for adjustment of his status to that of

a permanent resident, solely on the ground that he did not have a visa readily available to him.

8 CFR 204.1(d) specifies that a petition (Form I-140) to have an alien classified as a preference immigrant under section 203 (a) (6) of the Immigration and Nationality Act (8 U.S.C. 1153) must be accompanied by a certification of the Secretary of Labor before it may be accepted by the Service and considered properly filed; and that no appeal shall lie from a decision denying the petition for lack of the certification by the Secretary of Labor. 8 CFR 245.1(d) provides that an applicant for preference status such as this respondent is not eligible for the benefits of section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) unless he is the beneficiary of a valid unexpired visa petition filed in accordance with 8 CFR 204 and approved to accord him such status. 8 CFR 103.1(e) (2) and (f) places the determination of whether or not an alien possesses the qualifications for sixth preference status solely within the jurisdiction of the appropriate District Director and Regional Commissioner. 8 CFR 242.8 does not vest in the special inquiry officer authority over such a question. And 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction of such a question from this Board.

The foregoing regulations have the force and effect of law (Di Mieri v. Uhl, 96 F.2d 92). They are binding on all the parties here concerned. Clearly, in the light thereof and the specific provision of the regulations, the special inquiry officer properly ruled this respondent ineligible for adjustment of his status to that of a permanent resident. By the same token, respondent's argument that the special inquiry officer erred in failing to pass upon the question of the respondent's eligibility for sixth preference status is completely devoid of validity. The same is true of his assertion that this Board should do so now.

We likewise find without merit the claim that the special inquiry officer should have deferred his decision until the respondent had the opportunity to comply with the foregoing provisions of the regulations, or that this Board should now enter an order to that effect. Despite the passage of four months since the entry of the special inquiry officer's order, there is no showing here of what, if any, efforts the respondent has made to comply with the applicable provisions of the pertinent regulations hereinbefore set forth. If he has made appropriate efforts in this connection, then they would be properly a matter for the consideration of the appropriate District Director in setting the time for the respondent's voluntary departure or, upon his failure to so depart, in fixing the time for his deportation. In the latter contingency, as we have previously pointed out

(Matter of I-, A-13212870, 10 I. & N. Dec. 372) then would be the appropriate time for respondent to raise the question of the power of this Board to see that justice is done. In any event, respondent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render such action appropriate.

As we have hereinbefore pointed out, the law and the existing regulations are binding on all parties here concerned. Obviously, therefore, respondent's complaints about the confusion resulting from recent changes in the law and possible delay in obtaining the necessary "clearance order" to be issued by the Secretary of Labor, as required by the implementing regulations, lie elsewhere than with this Board. Accordingly, and in view of the foregoing, the special inquiry officer's order will be affirmed.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF M/T "DONA MARIA"

In Fine Proceedings

LOS-10/2.141

Decided by Board May 2, 1966

Where an alien crewman, inspected and denied conditional landing privileges upon arrival, was subsequently reported missing from the ship by the master of the vessel and was so reported on the departure manifest, liability to fine lies under section 254(a)(2), Immigration and Nationality Act, for failure to detain the crewman aboard the vessel, absent a showing by the carrier that an illegal landing was not made by the crewman.

IN RE: M/T "DONA MARIA," which arrived at the port of Los Angeles, California, from foreign, on May 23, 1964. Alien crewman involved: Wing Piu Ko

BASIS FOR FINE: Act of 1952-Section 254 (a) (2) [8 U.S.C. 1284]

This appeal is directed to an administrative penalty of $500, $1000 mitigated to the extent of $500, which the District Director at Los Angeles has ordered imposed on the vessel's agents, Lilly Shipping Agencies, and/or its Master, Frederick W. Ridley, for failure to detain the above-named alien crewman aboard the vessel at all times despite the fact that he had not been granted conditional landing privileges.

It appears from the record before us that the following material facts exist without substantial controversy. Immigration inspection was accorded the crew of this vessel immediately upon its arrival from foreign, ante. As a result, 46 alien crew members, including the one named above, were denied conditional landing privileges. However, on May 26, 1964, at 11:30 p.m., the Master of the vessel reported that the above-named alien crewman was missing from the ship. A search of the vessel by the ship's officers and crew failed to produce the missing crewman. The vessel sailed foreign at 12:30 p.m. on May 27, 1964. The manifest (Form I-418) submitted for that departure reported the crewman as not on board.

The carrier asserts that while the vessel was anchored about a mile offshore at El Segundo, California, this alien crewman left the ship

and endeavored to swim ashore. It asserts that to its knowledge he never landed in this country. It claims that it has no reason to believe that he has been seen alive since he was found missing from the ship. It argues that it is as reasonable to assume that he drowned attempting to swim ashore as it is to conjecture that he landed in the United States. It contends that no fine should be imposed, on the theory that an illegal landing is essential to a violation of this section of the law and that none has been established here.

Excerpts from records of the El Segundo Police Department, to which department this crewman's escape was reported, contain evidence indicating that the crewman in question may actually have succeeded in reaching the shore. But regardless of whether he did or not, the appellant's argument in this respect overlooks the provisions of subsection (b) of section 254 of the Immigration and Nationality Act, which provide that:

*

Proof that an alien crewman did not appear upon the outgoing manifest of the vessel *** on which he arrived in the United States *** or that he was reported by the Master or Commanding Officer of such vessel * * as a deserter, shall be prima facie evidence of a failure to detain or deport such alien crewman. (Emphasis supplied.)

Here, the crewman was missing from the ship and so reported, including on the departure manifest. These factors bring into play subsection (b) of the statute. That being the case, under the law the carrier then had the burden of proceeding to show that an illegal landing was not made by the crewman. Absent same, the fine lies.

If, as pointed out by the Service, it had the burden of producing the corpus delicti before it could institute fine proceedings, then the Congressional purpose of providing for close control over crewmen would be frustrated in many, if not most, cases. The wording of the statute supports the Service in this respect. If, on the other hand, the carrier's claim that the crewman jumped overboard and unsuccessfully attempted to swim ashore is ultimately established, then the carrier has an appropriate remedy by way of a motion for reconsideration.

The only remaining issue is whether more mitigation than has already been authorized by the District Director ($500) is warranted in these premises and, if so, how much. In this connection, two professional guards per shift were on duty on an around-the-clock basis to guard the detainees aboard this vessel, both while it was docked and while it was finishing its loading a mile offshore. The District Director has indicated in his opinion that the Master and the agents of this vessel did attempt diligently to detain the crew