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October 26, 1978

Mofzal AHMAD
Raymond A. MORRIS et al.

The opinion of the court was delivered by: LORD, III


Plaintiff *fn1" , an alien, seeks judicial review of the denial by defendant, District Director of the Immigration and Naturalization Service ("INS"), of his application for classification as a refugee pursuant to section 203(a)(7) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1153(a)(7), and of his application for adjustment of status pursuant to section 245 of the Act, 8 U.S.C. § 1255. Defendant has moved for summary judgment asserting that there are no material issues of fact and that the defendant's denial of plaintiff's application was correct as a matter of law. Plaintiff resists this motion and moves to have his case remanded to the District Director for the taking of additional evidence. I will grant defendant's motion.

 Plaintiff is a Bengali from East Pakistan who arrived in the United States on board the ship "Al Ahmadi" on August 13, 1971. Sometime in late 1970 or early 1971 plaintiff shipped out of Karachi, West Pakistan, as a merchant seaman on board this West Pakistan vessel. While at sea, conflict between East and West Pakistan developed and plaintiff was threatened by the West Pakistani crewmen who told plaintiff that any Bengali crewmen would be arrested once the ship returned to Karachi. Because of this situation plaintiff applied for political asylum shortly after his ship docked in Philadelphia on August 17, 1971, on the ground that he would be persecuted if he returned to West Pakistan. His request was granted on August 20, 1971, and he was given permission to remain in the United States until August 19, 1972, under the condition that this permission was subject to revocation at any time.

 After the independent nation of Bangladesh was formed, the District Director decided to review plaintiff's immigration status. On April 26, 1972, INS denied plaintiff's request for political asylum and on July 13, 1972, an order to show cause why plaintiff should not be deported was issued. These deportation proceedings are still pending.

 Independent of the deportation proceedings, plaintiff, on September 17, 1973, filed an application for classification as a refugee under section 203(a)(7) of the Act and for adjustment of status under section 245(a) of the Act. Through this application, plaintiff was seeking admission to the United States as a permanent resident. Section 245(a) of the Act provides:

"(a) The status of an alien, Other than an alien crewman, who was inspected and admitted 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 permanent residence if (1) the alien makes an application for such adjustment, (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 application is approved." 8 U.S.C. § 1255 (emphasis added).

 In order to qualify for this change of status the alien must be eligible to receive an immigrant visa which is immediately available to him and thus plaintiff applied for refugee classification from which he could obtain a visa, under the proviso of section 203(a)(7). This section states:

"(7) Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe and in a number not to exceed 6 per centum of the number specified in section 1151(a)(1) or (2) of this title, to aliens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, or (II) from any country within the general area of the Middle East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made; or (B) that they are persons uprooted by catastrophic natural calamity as defined by the President who are unable to return to their usual place of abode. For the purpose of the foregoing the term "general area of the Middle East' means the area between and including (1) Libya on the west, (2) Turkey on the north, (3) Pakistan on the east, and (4) Saudi Arabia and Ethiopia on the south: Provided, That immigrant visas in a number not exceeding one-half the number specified in this paragraph may be made available, in lieu of conditional entries of a like number, to such aliens who have been continuously physically present in the United States for a period of at least two years prior to application for adjustment of status." 8 U.S.C. § 1153 (emphasis added).

 A regulation promulgated by INS clarifies the interrelationship between these two sections. Regulation 245.4 states:

 Defendant denied plaintiff's application on February 4, 1976, on two bases: (1) plaintiff is ineligible for refugee status under 203(a)(7) because that provision is subject to the limitation contained in section 245 of the Act which excludes alien crewmen from adjustment of status; and (2) plaintiff, as a citizen formerly of East Pakistan which is now Bangladesh, is not from "the general area of the Middle East" and thus is ineligible for § 203(a)(7) classification. Defendant now seeks summary judgment on both these grounds.

 Plaintiff argues that summary judgment is unwarranted for several reasons. First, he asserts that the defendant did not have jurisdiction to rule on the Section 245 application for adjustment of status and that assuming jurisdiction, a decision on eligibility for adjustment of status was premature in light of the plaintiff's request for asylum pursuant to the United Nations 1967 Protocol and Convention Relating to the Status of Refugees, ("Protocol") 19 U.S.T. 6223, T.I.A.S. 6577, which request is pending in the deportation proceedings. Second, he maintains alternatively, that he is not an "alien crewman" as that term is used in § 245, that assuming he is a "crewman", plaintiff is a "refugee-crewman" when the effects of the Protocol on § 203(a) (7) are considered and thus is eligible for § 203(a)(7) classification, or that § 203(a)(7) eligibility should be determined independent of the restrictions placed upon § 245 adjustment of status. Finally, plaintiff asserts that he should not have been denied refugee classification under § 203(a)(7) as a matter of fact based upon the defendant's determinations that plaintiff is a citizen of Bangladesh and that he therefore is not from "the general area of the Middle East" because there was no administrative record to support the factual conclusion as to plaintiff's citizenship. To resolve the motion for summary judgment I only need deal with the first two sets of arguments raised by plaintiff.


 After receiving adverse decisions on his applications for adjustment of status under § 245 and classification as a refugee under § 203(a)(7), plaintiff for the first time now objects to the District Director's decision on the § 245 applications on the ground that he lacked jurisdiction. He maintains that 8 C.F.R. § 245.2(a)(1) *fn2" confers exclusive jurisdiction for an application for adjustment of status to the hearing officer in a deportation proceeding for those aliens who have received an order to show cause why they should not be deported. I conclude, however, that I cannot decide this question because (1) plaintiff has waived this challenge by filing his application with the District Director in contravention of 8 C.F.R. § 245.2(a) or alternatively (2) his failure to raise this question before the agency bars him now from raising it on review. Cisternas-Estay v. Immigration & Naturalization Service, 531 F.2d 155, 160 (3d Cir. 1976). See United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S. Ct. 67, 97 L. Ed. 54 (1952); Unemployment Compensation Comm. of Alaska v. Aragon, 329 U.S. 143, 155, 67 S. Ct. 245, 91 L. Ed. 136 (1946). It would be abusive of the administrative process to ...

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