U.S. Citizenship and Immigration Services

MATTER OF G-8-

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 26,2017

APPEAL OF NA TJONAL BENEFITS CENTER DECISION

APPLICATION: FORM 1-485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS

The Applicant, a native and citizen of the Philippines, seeks to adjust status to that of a lawful permanent resident (LPR) under section 13 of the 1957 Immigration Act (Section 13). 18 U.S.C. § 1255b. 1 Section 13 allows an applicant previously in diplomatic status (A-1, A-2 or G-L G-2 visa holders) to adjust status if a) the duties were diplomatic or semi-diplomatic, b) the applicant is unable to return to the home country due to compelling reasons, c) the applicant is admissible and a person of good moral character, and d) adjustment is in the national interest and not contrary to the national welfare, safety, or security of the United States.

The Director of the National Benefits Center denied the application, concluding that the Applicant, a derivative of her spouse who is the principal applicant, could not establish Section 13 eligibility where the principal applicant did not initially establish Section 13 eligibility lor himself.

On appeal, the Applicant asserts that she and her family were harassed and threatened in the Philippines. The Applicant also submits a letter from her spouse stating that he fears that political opponents of his employers would harass him and his family in the Philippines, and there is a general state of lawlessness in the country that would put them in danger.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 13 provides that a foreign national, along with immediate family members. who was admitted to the United States as an A-1, A-2, G-1, or G-2 nonimmigrant, and who has failed to maintain that status, may apply for adjustment of status. 18 U.S.C. § 1255b(a), 8 C.F.R. § 245.3. An applicant must show compelling reasons why the applicant (or a member of the applicant's immediate family) is unable to return to the country represented by the government which accredited the applicant (or a member of the applicant's immediate family), and that adjustment of status would be in the national interest. 18 U.S.C. § 1255b(b). An applicant must further demonstrate that

1 Pub. L. No. 85-316,71 Stat. 642, amended by Pub. L. No. 97-116,95 Stat. 161 (1981).

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adjustment of status would not be contrary to the national welfare, safety, or security of the United States, and that the applicant is a person of good moral character and admissible to the United States. ld. The statute limits the benefit to 50 persons each f-i scal year. 18 U.S.C. § 1255b(d) .

The regulations provide that adjustment of status under Section 13 is limited to those foreign nationals who performed diplomatic or semi-diplomatic duties and to thei r immediate families, and that a foreign national whose duties were of a custodial, clerical, or menial nature, and members of his or her immediate family, are not eligible for adjustment. 8 C.F.R. § 245.3. The regulations also state that an applicant who is prima facie el igible for adjustment of status to that of an LPR under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. ld.

II . ANALYSIS

The Applicant was admitted to the United States under A-2 status as a derivative of her spouse, who served as at the 111 Californ ia. The Applicant's status was terminated upon the completion of her spouse's term. The Appl icant asserts that government agents harassed her and her fami ly to drop a civi l land suit in the Philippines. The Applicant's spouse also asserts that innocent people are being kill ed in the Philippines and hi s association with previous president could result in harassment for himself and the Applicant.

A. Diplomatic or Semi-Diplomatic Duties

To be e ligible for adjustment of status under Section 13, an applicant (or the immediate family member admitted to the United States in A-1 , A-2, G-1 , or G-2 visa status) must have performed diplomatic or semi-diplomatic duties. 8 C.F. R. § 245.3. As the Applicant does not allege that she performed diplomatic or semi-diplomatic duties in the United States, we must determine whether her spouse, the principal applicant, satisfied thi s requi rement. The terms diplomatic and semi-diplomalic are not defined in Section 13 or pertinent regulations and the standard detini ti on of diplomatic is varied and broad. The regulation at 8 C.F.R. § 245.3 specifically indicates that duties "of a custodial, clerical, or menial nature" are not diplomatic or semi-diplomatic. Black's Law Dictionary does not incl ude the term diplomatic, but rather refers to the word diplomacy, which it defines as:

l. The art and practice of conducting negoti ations between national governments.

2. Loosely, foreign policy. 3. The co llecti ve functions performed by a diplomat.- diplomatic, adj.

(1Oth ed. 2014). Consular functions are not generally diplomatic functions, but the performance of consular functions and the establishment that one has performed diplomatic duties are not mutually exclusive.2

1 See generally Vienna Convention on Diplomatic Relations, Art. 3 el seq., 23 U.S.T. 3227, 500 U.N.T.S. 95, given

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The term semi-diplomatic is undefined by any source. Common definitions ofthe term semi include "to some extent [or] partly," "partial," and "having some of the characteristics of."3 Semi­diplomatic duties therefore could include duties partially or to some extent diplomatic in a more substantial fashion than duties that were of "a custodiaL clerical, or menial nature." We must evaluate the position held and the duties performed to detem1ine whether the Applicant is eligible for adjustment of status under Section 13.

The Applicant's spouse asserts that he "vas employed at the m California, from August 2008 until August 2014. ln his April 2015 sworn statement,

the Applicant's spouse asserted that he was the from August 2008 until August 2013, in charge ofthe in the office and assisting in the on a monthly, quarterly, and yearly basis. The Applicant's spouse asserted that he was designated the

from August 2013 until August 2014. The Applicant's spouse stated that his duties as included being in charge of the office funds: paying bills, salary, and the reporting of funds and budgeting to The Applicant's spouse also stated that the duties he held at the

were not considered diplomatic or semi-diplomatic in nature, as he was considered part of the staff.

Based upon the Applicant's spouse's representations concerning his duties with the in the United States, he has not demonstrated that his \vork involved engagement

in negotiations between national government, foreign policy, or other functions of a diplomat. The Applicant's spouse asserted that he worked for the assisting previous

in the Philippines prior to his entry to the United States. How·ever, even assuming arguendo that such duties could be characterized as diplomatic or semi-diplomatic, for Section 13 eligibility, the qualifying position and duties must take place in the United States after entry under A-1, A-2, G-1, or G-2 visa status. ·

Accordingly, the record does not establish that the Applicant's spouse performed diplomatic or semi­diplomatic duties as required for eligibility under Section 13. We would normally stop our review after determining that an applicant had not satisfied the threshold requirement of show·ing that he or she performed diplomatic or semi-diplomatic duties; however, because the Director addressed the issue of compelling reasons, we will also address that issue beiO\v.

B. Compelling Reasons for Inability to Return

The term compelling must be read in conjunction with the phrase unable to return and the purposes of Section 13 to correctly interpret the meaning of the words in the context of this limited benefit. There may be many reasons a former diplomat is unwilling to return to hi s or her country, including medical, educational, and professional reasons, or general country conditions. The legislative history shows that Congress originally intended the benefit tor those unable to return to the country

effect by the Diplomatic Relations Act of 1978, 28 U.S.C. § 252. 3 Merriam-Webster, Semi, (i'vfar. 20 !6). hup:iiwww.merriam-wehster. com/diclionwy/semi.

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of accreditation because "Communist and other uprisings, aggression, or invasion had in some cases destroyed their governments ... [leaving them] homeless and stateless."4 The phrase "compelling reasons" was added to Section 13 in 1981 after Congress "considered 74 such cases and rejected all but 4 of them for failure to satisfy the criteria clearly established by the legislative history of the 1957 law." H.R. Rep. 97-264, at 33 (1981 ). We therefore interpret this requirement narrowly consistent with the congressional intent. Reasons that may be considered compelhng are those resulting from a fundamental political change that because of the prior diplomatic service constrains the applicant's return to the home country.

The Applicant asserts that she cannot return to the Philippines because she and her family were threatened and harassed by agents of the Philippine National Bureau of Investigations after they filed a civil land suit. She does not explain the circumstances of the alleged threats and harassment or, more importantly, link them to her spouse's prior diplomatic service. The Applicant 's fear of return because of this alleged land dispute is not the type of compelling reason contemplated by Congress when it established Section 13; she does not identify the fundamental political change that occurred in the Philippines that now, because of her spouse's performance of his duties in the United States on behalf of the Philippines, constrains her from returning.

The Applicant's spouse also asserts that his family cannot return to the Philippines because of current country conditions and his prior work as the

for and The Applicant's spouse contends that his association with former may cause his family to be harassed, as opponents may seek to gather information and implicate these political figures.

The Applicant's spouse further contends that there is a state of lawlessness in the Philippines with the death of innocent people and the rise of ISIS sympathizers. The Applicant's spouse expresses concerns about the country conditions in the Philippines, but there is no allegation or demonstration that there has been such a fundamental political change in the Philippines since his service in the United States that the Applicant would be left homeless and stateless upon return. In addition, we must determine whether it is the Applicant's spouse's prior diplomatic or semi-diplomatic service in the United States that renders the Applicant unable to return to this fundamentally changed government. The Applicant's explanations as to why she is unable to return to the Philippines, however, are not related to her spouse's service in the United States, as they are based upon her spouse's government service in the Philippines, and general country conditions.

The record does not establish that there are compelling reasons under Section 13 for which the Applicant is unable to return to the Philippines.

4 Analysis of Bill to Amend the Immigration and Nationality Act. 85th Cong., I 03 Con g. Rec. 14660 ( 1957) (statement of Senator John F. Kennedy).

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C. Additional Requirements

The Applicant must also establish that there are compelling reasons that her adjustment of status to that of an LPR under this provision is in the national interest of the United States. As the Applicant has not established that the principal applicant performed diplomatic or semi-diplomatic duties or that compelling reasons as provided under Section 13 exist making her unable to return to the Philippines, we need not address the issue of whether she has established that her adjustment is in the national interest. Moreover, as the Applicant has not demonstrated eligibility under Section 13, we need not consider whether the Applicant warrants adjustment of status to that of an LPR in the exercise of discretion.

Ill. CONCLUSION

The Applicant has not established her eligibility under Section 13, as the reasons that she provides for being unable to return to the Philippines are not compelling in accordance with Section 13 and she has not demonstrated that her spouse performed diplomatic or semi-diplomatic duties.

ORDER: The appeal is dismissed.

Cite as Maller ofG-B-, ID# 237062 (AAO May 26, 2017)

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