GUIRAGOSSIAN

Interim Decision #2740

MATTER OF GUIRAGOSSIAN

In Deportation Proceedings

A-14921306

Decided by Board October 31, 1979
(1) Notwithstanding the requirement of 8 C.F.R. 245.4 that an application for classifica-
tion as a refugee pursuant to the proviso of section 203(a)(7) of the Immigration and
Nationality Act, 8 U.S.C. I153(a)(7), be submitted concurrently with an application for
adjustment of status under section 245 of the Act, 8 U.S.C. 1255, applications for
refugee classification lie within the exclusive jurisdiction of the District Director (8
C F R 245 4) while adjustment applications may only be entertained by an immigra-
tion judge or the Board once deportation proceedings have been instituted (8 C.F.R.
245.2(a)(1)).
(2) Where an alien submits an application for seventh preference classification as a
refugee in conjunction with an application for adjustment of status upon a motion to
reopen the deportation proceedings and the District Director does not act upon the
application for refugee status prior to its transmittal with the adjustment application
to the immigration judge or the Board, the Board shall not consider the lack of
approval of the application for refugee status to be a ground for denial of the motion
unless clear ineligibility for the status claimed is apparent in the record; the "clear
ineligibility" rule set forth in Matter of arcia,16 I&N Dec. 653 (BIA. 1978), applies by
analogy.
(3) Unless an applicant for adjustment of status appears clearly Ineligible for the
preference claimed in the underlying visa petition or application for classification as a
refugee, the Board shall treat the pending petition or application as though it were
already approved for the purpose of reopening. Matter of Garcia, supra, clarified.
(4) Where the respondent had resided and worked in West Germany for more than 12
years following his flight from Bulgaria and had returned to West Germany after a
visit to the United States during that period, he had firmly resettled in West Germany
and accordingly may not qualify for preference status under section 203(a)(1) as a
refugee from Bulgaria.
(5) Where Bulgaria was not designated either as the principal or an alternate country of
deportation, the likelihood that the respondent would be persecuted within the mean-
ing of section 243(h) of the Act, 8 U.S.C. 1253(h), if required to return to Bulgaria is
irrelevant.
(6) Notification of the right to apply for relief under section 243(h) is not required with
respect to a country designated by the alien. 8 C.F.R. 242.17(c).
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer

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ON BEHALF OF RESPONDENT: Eric Avazian, Esquire
33 South Hope St., Suite 3710
Los Angeles, California 90071
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the October 31, 1977, decision of
an immigration Judge which denied the respondent's motion to reopen
the deportation proceedings for consideration of his application for
adjustment of status under section 245 of the Immigration and Nation-
ality Act, 8 U.S.C. 1255, based upon his claim of entitlement to seventh
preference status as a refugee pursuant to the proviso to section-
203(a)(7) of the Act, 8 U.S.C. 1153(a)(7). The appeal will be dismissed.
The respondent, a 52-year-old native of Bulgaria, claims to have fled
his native country in September of 1960 following two incidents, the
latest in 1960, of having been arrested and jailed for his anti-com-
munist beliefs. The record reflects that the respondent resettled in
West Germany where he resided until September 26, NM when he
was admitted to the United States as a nonimmigrant visitor for
pleasure authorized to remain until May 1, 1974. He failed to depart
within the authorized period or thereafter.
On April 6, 1977, an Order to Show Cause was issued charging the
respondent with deportability as an overstay under section 241(a)(2) of
the Act, 8 U.S.C. 1251(a)(2). At a deportation hearing conducted on
May 26, 1977, an immigration judge found the respondent deportable
as charged on the basis of his concessions at the hearing, granted him
the privilege of voluntary departure in lieu of deportation, but ordered
the respondent deported to West Germany, the country of deportation
designated by him, in the event of his failure to depart voluntarily
within the time specified. No appeal was taken from that decision.
On September 23, 1977, the respondent filed the present motion to
reopen by submitting a Form 1-485, Application for Status as a
Permanent Resident,2 accompanied by a Form I-590A, Application for
Classification as a Refugee (under the proviso to Section 203(a)(7),
Immigration and Nationality Act as amended). The immigration judge
denied the motion, concluding that the respondent could not establish
eligibility for a visa, and hence for adjustment of status, 3 since his
' According to information provided by the respondent, he was employed by a firm in
Munich, West Germany, from March of 1961 until September of 1973. See Form G-325A.
= The filing of an application for adjustment of status (Form 1-485) may be considered
a motion to reopen. 8 C.F.R. 242.22.
' In order to qualify for adjustment of status under section 245, an alien must apply for
adjustment, establish that he is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence, and that an immigrant visa is immedi

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application for classification as a refugee had not been approved. We
concur with the result reached by the immigration judge for reasons
other than that cited by him
The Code of Federal Regulations, 8 C.F.R. 245.4, directs an applicant
for adjustment of status based upon a claim to refugee status under
the proviso to section 203(a)(7) of the Act to execute and attach to his
adjustment application (Form 1-485) an application for classification
as a refugee (Form I-590A).4 The foregoing regulation further provides
that the determination as to whether an alien is entitled to the claimed
refugee status shall be made by the District Director and that no
appeal shall lie from his decision. The immigration judge and the
Board are without authority to consider applications for classification
as a refugee either initially or upon review. Matter of Garcia Meijides, -

12 I&N Dec. 75 (BIA 1967). However, once an Order to Show Cause has
been issued, an application for adjustment of status may not be en-
tertained by the District Director but can only be considered by an
immigration judge in the course of the deportation hearing or by the
Board on appeal. See 8 C.F.R. 245.2(a)(1). A motion to reopen for
consideration of an adjustment application must likewise be addressed
to the immigration judge or the Board.
The requirement of 8 C.F.R. 245.4 that the application for preference
status as a refugee be filed simultaneously with the adjustment appli-
cation presents no problem when both applications are submitted to
the Service prior to the issuance of an Order to Show Cause because the
District Director has authority in that instance to adjudicate both
applications. Where the application for adjustment of status, accom-
panied by the application for seventh preference status, is presented to
an immigration judge at a deportation hearing, we have held that the
deportation proceedings should be held in abeyance pending adjudica-
tion by the District Director of the Form I-590A. See Matter of Young,
16 I&N Dec. 370 (BIA 1977); Immigration and Naturalization Service
Operations Instructions 245.8(b)(2) and (5).
The difficulty arises when an alien seeks to assert his claim to
adjustment of status under the proviso to section 203(a)(7) upon a
motion to reopen. It is by no means clear that the regulations and
Service Operations Instructions permit an alien under an order of
deportation to secure an adjudication of his Form I-590A by the
District Director before the immigration judge rules upon his motion
to reopen (Form 1-485). In the instant case, the respondent simulta-
ately available to him at the time his application is ailed.
' The instructions to Form 1-485 and Form 1-590A likewise require that the application
for classification as a refugee be submitted with the adjustment application. See also
Immigration and Naturalization Service Operations Instruction 245.8(b)(1).

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neously filed his adjustment application and application for refugee
classification with the Service as directed by the regulations and the
instructions on the application forms. The Service, treating the adjust-
ment application as, a motion to reopen, transmitted the I-485/I-590A
package to the immigration judge who thereupon denied the motion on
the ground that the respondent's application for classification as a
refugee had not been adjudicated and he was therefore unable to
establish eligibility for an immigrant visa.
Assuming Service procedures do not in fact provide an alien an
opportunity to obtain an adjudication of his claim to refugee status
before the immigration judge or the Board acts upon his motion to
reopen, the motions of all applicants seeking adjustment of status as
refugees after an order of deportation has been entered must neces-
sarily be denied as premature under the rationale adopted by the
immigration judge. We are concerned lest those procedures have the
effect of categorically precluding aliens whose claim to relief arises
subsequent to their deportation hearings from establishing eligibility
for adjustment of status as seventh preference refugees, thus depriv-
ing qualified aliens, albeit deportable aliens, of a substantive right
accorded them by the statute. Compare Luen Kwan Fu v. INS, 431 F.2d
73 (2 Cir. 1970).
In Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), we announced that
we will generally reopen the deportation proceedings for consideration
of an application for adjustment of status filed concurrently with a
visa petition pursuant to the simultaneous filing provisions of 8 C.F.R.
245.2(a)(2), notwithstanding the fact that the visa petition has not yet
been approved, unless clear ineligibility is apparent in the record.
Although the regulation at issue in Garcia by its terms authorizes the
simultaneous filing of adjustment applications with visa petitions, not
with applications for seventh preference classification, we believe that
the policy considerations underlying our decision in Garcia apply with
equal force in the present case. In each instance, the alien would be
able to establish present eligibility for adjustment of status but not
the fact that his underlying claim to preference status has not yet been
reached for adjudication and, his application or petition approved.
We shall accordingly extend the "clear ineligibility" standard for
reopening of Garcia' to cases involving applications for adjustment of
status based upon a claim to refugee status and shall not consider the
s A note of clarification regarding the "clear eligibility" rule of Garciamay be in order.
That rule is concerned exclusively with questions regarding the ultimate approval or
denial of the visa netition which is filed simultaneously with the application for adjust-
ment of status. In Garcia we concluded that unless the applicant for adjustment appears
clearly ineligible for the preference status claimed in the underlying visa petition, we
would treat a pending visa petition as though it were already approved for the purpose of

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lack of approval of the Form I-590A to be a ground for denial of the
motion unless clear ineligibility for the status claimed is apparent in
the record. Applying that standard, we affirm the immigration judge's
denial of tho respondent's motion to reopen_
The Supreme Court in Rosenberg v. Yee Chien Woo, 402 U.S. 49
(1971), observing that Congress "never intended to open the United
States to refugees who had found shelter in another nation and had
begun to build new lives," (id. at 56) held that a refugee from his
homeland who had firmly resettled in a third country where he is not
subject to persecution may not qualify for refugee status under section
203(a)(7). The Coo -A approved the legal standard set forth by the
District Director for determining whether such resettlement had
taken place, to wit:
... that "physical presence in the United States [be] a consequence of an alien's flight
in search of refuge," and further that "the physical presence must be one which is
reasonably proximate to the flight and not one following a flight remote in point of
time or interrupted by intervening residence in a third country reasonably constitut-
ing a termination of the original flight in search of refuge." Id. at 57.
The respondent in the instant case resided in West Germany for
more than 12 years following his flight from Bulgaria. He was steadily
employed throughout his period of residence in West Germany. Ho
returned to West Germany following a previous visit to this country.'
We are satisfied on these facts that the respondent had firmly resettled
in West Germany and, hence, is not eligible for the benefits of section
203(a)(7) of the Act.
Finally, we find no merit in the respondent's argument that the
immigration judge erred in refusing to reopen the deportation
proceedings to permit him to assert a claim for withholding of de-
portation pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h). The
likelihood that the respondent would be persecuted within the mean-
ing of section 248(h) if required to return to Bulgaria is irrelevant since
Bulgaria was not designated either as the principal or an alternate
reopening. We would thus give what we consider to be appropriate effect to the
simultaneous filing provisions of the regulations and at the same time avoid the unneces-
sary intrusion into the District Director's jurisdiction over the adjudication of visa
petitions which would be occasioned by an in-depth examination into the merits of a
particular petition. However, at the second level of inquiry, to wit, whether the applicant
otherwise qualifies for a grant of adjustment of status, the ordinary standard for
reopening applies; it is incumbent upon the applicant to make a prima facie showing that
he is entitled to the relief sought under section 245. See Matter of Rodriguez, Interim
Decision 2727 (BIA 1979). It was not our intention in Garcia to place beneficiaries of visa
petitions which have not yet been reached for adjudication in a better position with
respect to their motions to reopen than beneficiaries of approved visa petitions.
The respondent paid a four-month visit to the United States from late 1967 through
early 1968.

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Interim Decision #2740
country of deportation. The respondent does not contend that he would
be subject to persecution by the government of West Germany, the
place of deportation specified by him; in any event, notification of the
right to apply for relief under section 242(h) is not required with
respect to a country designated by the alien. 8 C.F.R. 242.17(c); Matter
of Sagasti, 13 I&N Dec. 771 (BIA 1971).
The respondent appears clearly ineligible for the preference claimed
under the proviso to section 203(a)(7); he has failed to make a prima
fade showing that he qualifies for the discretionary relief sought
under the Act. The respondent's appeal from the denial of his motion
to reopen will accordingly be dismissed.
ORDER: The appeal is dismissed.

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