G

MAMA OF G--

In SECTION 245 Proceedings
A-11539151
Decided by Regional Commissioner
Approved by Assistant Commissioner August 25, 1960
Adjustment of status—Section 245, as amended—Burden is upon applicant to
establish favorable action is warranted.
Section 245 application is denied as a matter of discretion to an alien who
married a United States citizen in 1959 and who has presented no inde-
pendent evidence to support his present claim that his prior sworn testi-
mony regarding the existence of a marriage in Poland was false. Applicant
has burden of establishing that his case merits favorable consideration.

BEFORE THE REGIONAL COMMISSIONER
DISCUSSION: The applicant, a native and citizen of Poland,
born May 6, 1909, in Chodecz, Poland, was admitted to the United
States as a temporary visitor on March 19, 1958. On February 9,
1959, an order to show cause in deportation proceedings was issued
alleging that the applicant, after admission as a nonimmigrant, had
remained in the United States for a longer time than permitted. At
a hearing before a special inquiry officer held on February 18, 1959,
the applicant was found deportable and was granted the privilege
of departing voluntarily from the United States. He failed to
depart within the time granted and on April 30, 1959, a warrant of
deportation was issued. The applicant subsequently applied for a
stay of deportation under the provisions of section 243(h) of the
1952 Act, and on September 4, 1959, that application was denied.
During the entire proceeding up to that date the applicant had
testified that he was married and that his wife and child resided
in Poland. In fact, he testified in detail as to his marital history.
On October 9, 1959, the ztpplicant marr ied a native-born citizen of
the United States and on October 29, 1959, he filed this application
for status as a permanent resident. Concurrently, the woman he
married filed a visa petition to accord him nonquota status. The
visa petition was approved on November 7, 1959. However, on De-
cember 14, 1959, the district director denied the application for status
as a permanent resident on the ground that the applicant was pre-
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 cluded by Part 245.1 of Title 8, Code of Federal Regulations, from
applying for the benefits of section 245 as an alien in whose case a
finding of deportability had been made subsequent to August 21,
1958. On January 6, 1960, this office affirmed the decision of the
district director.
On November 23, 1959, the Board of Immigration Appeals with-
drew the outstanding order of deportation and ordered the proceed-
ings reopened to afford the applicant an opportunity to clarify his
marital status. At the reopened hearing on December 15, 1959, the
applicant stated that all of his prior testimony covering his marital
status was false; that he had never been married prior to his mar-
riage on October 9, 1959; and that his son in Poland was illegitimate.
At the conclusion of the reopened hearing the special inquiry officer
held that the testimony at the reopened hearing in no way affected
the prior finding of deportability and he ordered the applicant de-
ported.
On June 22, 1960, Part 245.1 of Title 8, Code of Federal Regula-
tions, was amended to read; "An alien whose deportability has not
been established in proceedings under Part 242 of this chapter sub-
sequent to January 1, 1960, may if he believes he meets the eligibility
requirement of section 245 of the Act, file an application Form I-485
with the district director in whose district he resides." In view of
this change, the Service reopened the proceedings in this case and
this office assumed jurisidiction by certification.
Before action could be taken in the reopened proceedings, section
245(a) of the Act was amended by the Act of July 14, 1960 (74
Stat. 504). The amended section now provides: "(a) The status of
an alien, other than an alien crewman, who was inspected and ad-
mitted or paroled into the United States may be adjusted by the
Attorney General, in his discretion and under such regulations as
he may prescribe, to that of an alien lawfully admitted for per-
manent residence if (1) the alien makes application for such ad-
justment, (2) the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his ap-
plication is approved."
The regulations implementing the amended provision of law effec-
tive July 14, 1060, contain no reference to a finding of deportability.
The application will be considered and decided under this more
advantageous provision of law.
The applicant was inspnetprl and admitted to the United States
and has filed an application on Form 1-485, but a finding as to
whether he is admissible to the United States or whether an im-
migrant visa is available to him cannot be made until the true facts
as to his marital status are established. In view of his sworn testi-

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mony in the deportation proceeding setting forth in detail a history
of a marriage in Poland, his later self-serving statement that all
prior testimony as to his marital status was false cannot be accepted
without some independent evidence to verify that statement.
In order to reach a conclusion as to the true marital status of the
applicant it would be necessary to conduct an independent inquiry
in Poland. We do not feel that it is incumbent upon the govern-
ment to assume such a burden in connection with an application
under section 245 of the Act. The Service, in administering that
section of law, has consistently held that the extraordinary discre-
tionary relief provided will only be granted in meritorious cases
(Matter of S—, 8 234 ; Matter of C—, 8 683). The burden is always
-

upon the applicant to establish that his application merits favorable
action. In the instant case the applicant, by his own sworn testimony,
has cast serious doubt on his own credibility and has clouded the issue
of his true marital status. Tinder those circumstances, favorable
exercise of the Attorney General's discretion is not warranted.
ORDER: It is ordered that the application be denied as a matter
of discretion.

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