433 F2d 992 La Franca v. Immigration and Naturalization Service

433 F.2d 992

Francesco Paolo LA FRANCA, Petitioner,

No. 187.

Docket 34190.

United States Court of Appeals, Second Circuit.

Argued October 22, 1970.

Decided October 22, 1970.

Mario M. De Optatis, New York City, for petitioner.

Stanley H. Wallenstein, Special Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., New York City, on the brief), for respondent.

Before MEDINA, WATERMAN and FEINBERG, Circuit Judges.


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Petitioner Francesco Paolo La Franca, an alien who has been deported twice in the past, last entered the United States on February 20, 1967, as a nonimmigrant transit without visa authorized to remain for four days. Apprehended by Immigration Officers on June 13, 1968, he conceded deportability one week later and subsequently received two thirty-day extensions. Then followed a motion to reopen the deportation proceedings, which was denied, and a petition to this Court seeking review of the denial, which petition was dismissed on July 23, 1969 in La Franca v. Immigration and Naturalization Service, 413 F.2d 686 (2d Cir. 1969). Another motion to reopen the proceedings was filed on August 18, 1969, was denied on October 24, 1969, and this petition seeking review of the denial followed.


In his motion to reopen the deportation proceedings against him, petitioner requested a status adjustment from that of nonimmigrant without visa, within the meaning of § 101(a) (15) (C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (15) (C) (1964), to that of permanent resident. Petitioner alleges that his son Pietro, a lawful resident alien, is applying for naturalization and that the son's naturalization would give him immediate relative status on a visa petition by the son and allow him to obtain an immigrant visa without regard to the annual quota limitations established by § 201 of the Act, 8 U.S.C. § 1151 (1964), and qualify him for adjustment of status under § 245 of the Act, 8 U.S.C. § 1255 (1964). But Title 8, Code of Federal Regulations § 214.2(c) (1) (1970) provides in part that:


The privilege of transit without visa may be authorized only under the conditions that the alien will depart voluntarily from the United States, that he will not apply for adjustment of status under Section 245 of the Act * * *.


Sections 103(a) and 214 of the Act, 8 U.S.C. §§ 1103(a) and 1184 (1964), contain authority for the promulgation of this regulation by the Commissioner of Immigration and Naturalization, the delegate of the Attorney General, 8 C.F.R. § 2.1 (1970). The Board of Immigration Appeals clearly did not abuse its discretion in denying the motion to reopen the proceedings as petitioner could not have been granted the relief requested.


The petition for review is denied, and the statutory stay is vacated.