RAPACON

Interim Decision #2208

MATTER OF RAPACON
Application for Permission to Reapply

A-19049946

Decided by Regional Commissioner June 4, 1973
Notwithstanding the presence of adverse factors consisting principally of appli-
cant's prior false testimony to the Service concerning his employment abroad
and his return to the United States as a nonimmigrant without the requisite
permission to reapply, his application for permission to reapply for admission
to the United States after deportation is granted, in the exercise of discretion,
since it appears that applicant was honestly unaware that he had executed an
outstanding order of deportation upon his departure from this country;
departure was at his own expense; and his services are urgently needed in the
United States.

ON BEHALF OF APPLICANT: Bert D. Greenberg, Esquire
Suite 1800, California Federal Building
5670 Wilshire Boulevard
Los Angeles, California 90036

The applicant, a 26-year-old unmarried male, native and citizen
of the Philippines, was deported to that country on December 8,
1969. He seeks permission to reapply as an immigrant. The matter
is before us on appeal from the decision of the District Director,
who denied the application as a matter of discretion.
The record reflects that the applicant has been represented by
his present counsel hi all proceedings before the Service. There-
fore, they will not be discussed in detail except as to matters
touching on the matter before us. However, to clarify the issues
there follows a resume of pertinent events concerning the appli-
cant's status in the United States.
September 21, 1968 Admitted as a nonimmigrant visitor at Toronto Airport
until December 1, 1968.
September 28, 1968 Telephonically notified his Canadian employer he would
not be returning to his position there.
November 30, 1968 Applied for extension of his nonimmigrant status to
January 15, 1969, application granted January 7, 1969..
January 14, 1060 Commenced unauthorized employment at a Los Angeles
hospital.

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February 3, 1969 Filed third preference visa petition in own behalf. Peti-
tion approved September 22, 1969.
March 12, 1969 Apprehended by Service investigator and interviewed
under oath in presence of present counsel. Order to
show cause why he should not be deported was issued.
June 17, 1969 During hearing before special inquiry officer in expul-
sion proceedings, applied for privilege of voluntary de-
parture from the United States in lieu of deportation.
Application granted, with alternate order of deportation
if departure not effected within 20 days. Appeal from
special inquiry officer's order reserved.
June 27, 1969 Appeal taken from special inquiry officer's decision on
ground applicant was not permitted to remain indefi-
nitely until third preference visa numbers became avail-
able.
August 28, 1969 Appeal dismissed by Board of Immigration Appeals.
October 2, 1969 Warrant of deportation issued.
October 9, 1969 Request for stay of deportation denied.
October 20, 1969 Complaint for judicial review and declaratory relief filed
in U.S. District Court.
DprPmher R, 1969 Applicant departed for the Philippines at own expense.
June 28, 1971 Applicant obtained nonimmigrant visa and gained entry
into the United States as an H-1 temporary worker,
authorized to remain until May 9, 1972.
November 29, 1971 Applied for permanent resident status pursuant to sec-
tion 245 of the Act.
May 2, 1972 Application denied on the ground he was inadmissible
under section 212(a)(17)—no application for permission
to reapply for admission submitted or granted.
In his initial action denying the applicant permission to remain
in the United States while awaiting the availability of an immi-
grant visa, the District Director concluded that the circumstances
did not warrant favorable exercise of discretion. His action was
based, in part, on results of the applicant's interview by a Service
investigator on March 12, 1969. During the interview the applicant
was questioned as follows:
Q. Was it your intention to return to Canada at the time of your entry?
A. Yes, I wanted to go back. I was still employed, and I haven't resigned,
and the position is still open.
Further questioning was attempted but the applicant, on advice
of counsel, declined to answer. Subsequent inquiry established
that the applicant had, in fact, voluntarily terminated his Cana-
dian employment on September 28, 1968, a week after his entry
from that country.
In the mattes- before us the District Director relied on the

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foregoing misrepresentations as being of sufficient seriousness to
find that favorable exercise of the Attorney General's discretion
was not warranted. He also found that the applicant was fully
aware he had been deported despite his stated belief that depar-
ture at his own expense meant otherwise.
On appeal counsel argues that the Service erred in fmding that
the applicant had a preconceived intent to engage in employment
when he first entered the United States from Canada. He states
that it has been held (Matter of Arai, 13 I. & N. Dec. 494) that an
application for adjustment of status may be granted where unau-
thorized employment was taken by an overstayed visitor. Counsel
also cites applicant's occupation as a professional registered nurse
as constituting a sufficient equity to overcome any other adverse
factors, a criterion favorably considered by the Central Office
(Matter of H—R, 5 I. & N. Dec. 769). Request was made for oral
argument.
Oral argument was held as requested on April 13, 1973 with both
applicant and associate counsel, Mr. Leslie J. Frank, present. Also
present was Miss Marian Heffler, Associate Director of Nursing,
Kaiser Foundation Hospital, Inglewood, California, the applicant's
direct supervisor. Counsel stated that denial of the present appli-
cation is an extreme "punishment" in view of the circumstances
and that its effect is to find the applicant permanently ineligible to
live in the United States. He also stated that the deportation issue
was before the United States District Court and was unresolved at
the time the applicant left at his own expense, thus, leading him to
believe that he departed voluntarily rather than executing his
own deportation order. Miss Heffler stated that registered nurses,
male nurses in particular, are in short supply locally and that
there are four vacancies on the hospital staff for which they have
been unable to recruit qualified nurses. She stated that the
applicant is a team leader in the surgical unit of their institution
and is highly qualified to perform his specialized duties. The
applicant stated that he is unmarried and has no dependents in the
United States but is furnishing financial assistance for the educa-
tion of two siblings in the Philippines.
The record of proceeding, including oral argument and brief
furnished on appeal, has been carefully considered. It is noted that
the applicant concedes "misstatements" concerning his Canadian
employment during his March 12, 1969 investigatory interview.
That false testimony constitutes the principal substantive evi-
dence which can be construed as adverse, in addition to the
applicant's return to the United States without the required
permission to reapply for admission after his deportation.
The record does not unequivocally establish that the applicant

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fully understood the effect of his departure while unresolved
proceedings on his behalf still were before the Court. We note that
the record contains a letter from the applicant wherein he re-
quested information concerning the whereabouts of his petition.
He added "I made a voluntary departure from Los Angeles to
Manila, Philippines last December 6, 1969." The letter bears a
Manila return address and is dated December 8, 1970. Under the
circumstances, it is reasonable to assume that the applicant quite
honestly may have been unaware of his ineligibility to reapply for
admission to the United States without the permission he now
seeks. The applicant's false testimony in 1969 is not condoned. On
the other hand we note that the applicant's departure under the
outstanding order of deportation was at his own expense and that
the record establishes that he possesses occupational qualifica-
tions which are needed in the United States.
On balance, on the basis of the evidence of record, it is concluded
that the adverse factors are not of such gravity as to preclude the
favorable exercise of the Attorney General's discretion. Accdrd-
ingly, the appeal will be sustained and the application granted
nune pro tune from date of issuance of the nonimmigrant visa.
ORDER: It is ordered that the appeal be sustained and the
application granted nunc pro tune from date of issuance of the
nonimmigrant visa.

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