PIJACA

Interim Decision *1626

MAsmit OF PIJACA

• In Deportation Proceedings
A 15822398
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Dfcided by Board May 3, 1966
Motion to set aside the order of deportation and reopen proceedings to permit
application for adjustment of •tatus under the proviso to section 203(a) (7),
Immigration and Nationality Act, as amended by F.L. S9-239, is denied
since the determination as to whether an alien is entitled to the claimed
preference clandlicatioa under section 208(a)(7) shall be made by the dis-
trict director and since a record of permanent residence as a refugee under
section 203(a) (7) can be created only in accordance with the procedures es-
tablished for section 245 of the Act, and respondent, a crewman,' is statu-
torily ineligible for the benefits of section 245.
CHAIM :
Order: Act of 1952—Section 211(a.) (2) (8 U.S.C. 1251(a) (2)]--After ad-
mission as a nonimmigrant under section 101(a)
(15) of the Act remained for a longer time than
permitted.

The case comes forward on motion requesting that the order of
deportation be set aside and that the respondent be allowed to apply
for adjustment of status under section 208(a) (7) of the Immigra-
tion and Nationality Act as amended on October 3, 1965 and for
such other further relief as may be just and proper.
The record relates to a native'and citizen of Yugoslavia, 35 years
old, male, married, wlo last entered the United States at the port
of New York on March 18, 1957, was admitted as a crewman, and
has remained longer than permitted. Deportability has been estab-
lished. On June 25, 1957 the special inquiry officer granted volun-
tary departure with the further order that if the alien failed to r
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depart as required he be deported on the charge contained in the
order to show cause. On December 3, 1958 we dismissed the appeal
from an order of the special inquiry officer dated October 21, 1955
which denied a motion to apply for preexamination and the issuance

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 Interim Decision #1626

of a visa under section 15(a) (3). of Public Law 85-316 inasmuch
as there was no showing that an immigration 'visa was available,
and because section 15 applications under Public Law 85-316 were
matters exclusively within the jurisdiction of the 'State Department.
In connection with the motion to reopen there has been submitted
Form I-485, application for status as permanent resident, which
• 'was filed on December 17, 1965. However, with regard to adjust-
ment of status under section 245 of the Immigration and Nationality
Act, the regulations, 8 CFR 245.4, provide that the determination
as to whether an alien is entitled to the• claimed preference status
under section 203 (a) (7) of the Act shalt be made by the Distriet
Director and no appeal -lies from his determination. Accordingly,
this Board has no jurisdiction over the claimed preference under
section 203 (a) (7) of the Act. In addition, it may be pointed out,
that the respondent, who entered as a crewman, is not eligible for
' adjustment of status pursuant to section. 245 of the Immigration
and Nationality Act, as amended.
However it is noted that the respondent's entry as a crewman
occurred on March 18, 1957. Accordingly, under the provisions of
section 244(f) of the Immigration and Nationality Act as amended
by the Act of October 3, 1965, he appears eligible to file an applies-
" tion for suspension of deportation pursuant t6 section. 244(a) of the
Act. The case will be remanded for that purpose and for such other
action as may appear appropriate. .
ORDER: It is ordered. that the case be remanded to permit the
. respondent to make application for suspension of deportation under
the provisions of section' 244 of the Immigrition and Nationality
Act as amended by Om Act of October 3, 1965 and for such other
action as may be' appropriate.
It is twither ordered that if discretionary relief is granted, the
order of deportation be withdrawn.

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