A

MArIER OF A—

In SECTION 245 Proceedings

A-8833595

Decided by Regional, Commi.s.sioncr
Approved by Assistant Commissioner May 4, 1961
Adjustment of status—Section 245 of act—Discretionary denial.
Adjustment of status under section 245 of the Act Is denied In the exercise
of discretion to a former official of a foreign government accused by that
o , eromeol of inisappi - opciating its funds, whose continuf-d presence in thin
country, in the opinion of the Department of State, would create an irri-
tating factor in the relations between the United States and such foreign
government.
BEFORE THE REGIONAL COMMISSIONER

DISCUSSION: The applicant, a 30-year-old married male, native
and citizen of the United Arab Republic, was last admitted to the
United States on September 18, 1953, as a nonimmigrant student.
Upon completion of his studies he accepted employment with the
Consulate General of the United Arab Republic at New York. On
February 28, 1959, he was transferred to the Ministry of Foreign
Affairs, Cairo, and was ordered by his government to return home.
He did not depart and on March 26, 1959, he filed this application
for status as a. permanent resident.
Shortly thereafter, the accredited representative of the United
Arab Republic at New York notified this Service that the appli-
cant had been accused of misappropriating consular funds while
serving as Chancellor of the Consulate General of the United Arab
Republic at New York. There are incorporated into the record
letters from the Consul General of the United Arab Republic at.
New York, with transcripts of certain proceedings before that offi-
cer, concerning the allegation. The applicant was advised of the
accusation made against him and was afforded an opportunity to
nanko a statement in answer thereto. A {tor congideration of the
entire record, the District Director found that the application did
not warrant favorable exercise of the Attorney General's discretion
and on April 29, 1960, entered an order denying the application.
An appeal was taken to the Regional Commissioner and on June 27,

249
 1960, that officer affirmed the decision of the District Director, An
action was then filed in the United States District Court for the
District of Columbia, for a declaratory judgment, Pursuant to
stipulation by both parties, the matter was remanded to the Service
for further administrative action.
The application has nowbeen reopened and reconsidered by the
District Director. Between the time the application was first denied
and the date of reopening, section 245 of the 1952 Act was amended
by section 10 of the Act of July 14, 1960. The amendment broad-
ened considerably the basis on which an application can be filed;
therefore, the application was considered under the amended pro-
visions of law. As amended, section 245 provides that the Attorney
General, in his discretion, may accord status as a lawful permanent
resident to an alien, other than an alien crewman, who was inspected
and admitted or paroled into the United States, if the alien is eli-
gible to receive an immigrant visa and is admissible to the United
States as an immigrant, and if an immigrant visa is immediately
available to him at the time his application is approved.
When the case was reopened, the applicant was permitted to pre-
sent additional evidence in support of his application. Also made
a part of the record was a letter dated October 24, 1960, from the
Assistant Director of the Visa Office, Department of State, to the
District Director at New York stating, in effect, that it was the
opinion of the Department of State that approval of this applica-
tion would be inappropriate since such action would create an irri-
tating factor in the relations between our Government and the
Government - of the United Arab Republic. After consideration of
the entire record, the District Director concluded that favorable
exercise of the Attorney General's discretion was not warranted
and on December 30, 1960, he entered an order denying the appli-
cation. The order sets forth in detail the basis upon which that
conclusion was founded. The matter was then certified to this office
for review.
In reviewing the record, it has been noted that both the District
Director and counsel for the applicant have erroneously referred
to the proceeding as a "hearing." Neither the statute nor the regu-
lations promulgated thereunder authorize or require a hearing on an
application filed pursuant to section 245. The statements made by
the applicant in support of his application have merely been re-
corded so that the transcript could be incorporated into the record
for the benefit of the reviewing officer.
The sole issue to be decided here is whether the application merits
favorable exercise of the Attorney General's discretion. The Serv-
ice has consistently held that the extraordinary discretionary relief
provided in section 245 will only be granted in meritorious cases
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 (Matter of S—, 8-234; Matter of C—, 8 683 Matter of G—, 9
-

38). The burden is always upon the applicant to establish that his
application merits favorable action (Matter of G—, supra).
The fact that the applicant has been accused of a crime cannot
be considered in determining whether he meets the statutory re-
quirements of the law, since he has neither been convicted of a crime
nor does lift admit committing any criminal acts. However, this
factor, along with all other factors in the case, must be considered
in determining whether favorable discretionary action is warranted.
The Service has been placed on notice by a responsible accredited
official of the Government of the United Arab Republic that the
applicant stands accused of misappropriating funds of that Gov-
ernment while employed in an official capacity. By means of the
letter of October 24, 1960, referred to above, the Secretary of State,
through his designated representative, has informed the Service
that the Embassy of the United Arab Republic has made frequent
representations to the Department of State expressing the view of
that Government that to permit the applicant to remain in the
United States would obstruct justice by permitting him to escape
punishment. The letter also states that the Department of State
is of the opinion that approval of this application would he inap-
propriate since it would create an irritating factor in this Govern-
ment's relations with the Government of the United Arab Republic.
In view of all the factors in the case, it is concluded that the
District Director properly found that favorable exercise of the
Attorney General's discretion is not warranted and his order will
be affirmed.
ORDER: It is ordered that the order entered by the District Di-
rector on December 30, 1960, be affirmed.

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