U.S. Citizenship and Immigration Services

MATTER OF S-M-B-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR. 26, 2018

APPEAL OF NATIONAL BENEFITS CENTER DECISION

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

The Applicant, a native and citizen of Bangladesh, seeks to adjust status to that of a lawti.il permanent resident (LPR) under section 13 of the 1957 Immigration Act (Section 13). 8 U.S.C. § 1255b. 1

Section 13 allows an applicant previously in diplomatic status (A-1, A-2 or G-1, G-2 visa holders) to adjust status if a) the duties were diplomatic or semi-dipl01i1atic, 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 record did not establish, as required, that the Applicimt had demonstrated compelling reasons for his inability to return to Bangladesh.

On appeal, the Applicant asserts that he cannot return to Bangladesh because he will be at risk of harm due to his work in the United States and his family's political aftiliation.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 13 provides that a foreign national, along with immediate fi1mily 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. 8 U.S.C. § 1255b(a), 8 C.F.R. § 245.3. An applicant must show compelling reasons why the applicant is unable to return to the country represented by the government which accredited the applicant, and that adjustment of status would be in the national interest. 8 U.S.C. § 1255b(b). An applicant must further demonstrate that 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. !d. The statute limits the benefit to 50 persons each tiscal year. 8 U.S.C. § 1255b(d).

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

.

Matter <~[S-M-13-

The regulations provide that adjustment of status under Section 13 is limited to those foreign nationals who performed diplomatic or semi-diplomatic duties, and that a foreign national whose duties were of a custodial, clerical, or menial nature, arc not eligible for adjustment. 8 C.F.R. * 245.3. The regulations also state that an applicant who is prima facie eligible for adjustment to LPR status under another provision of law shall be advised to apply for adjustment pursuant to such other provision of law. !d.

II. ANALYSIS

The issue presented on appeal is whether the Applicant performed diplomatic or semi-diplomatic duties as part of his employment in the United States and whether there arc compell ing reasons why the Applicant is unable to return to Bangladesh. The Director found that the Applicant had not shown compelling reasons as to why he would be unable to return to Bangladesh. On appeal, the Applicant submits a brief asserting that he and his family will be in danger in Bangladesh due to his work in the .United States and the family's affiliation with the We find that the Applicant has not established that he performed diplomatic or semi-diplomatic duties, and has not demonstrated compelling reasons under Section 13 that prevent his return to Bangladesh.

A. Diplomatic or Semi-Diplomatic Status

To be el igible tor adjustment of status under Section 13, an applicant 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. The terms diplomatic and semi-diplomatic arc not defined in Section 13 or pertinent regulations and the standard definition 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" arc not diplomatic or semi-diplomatic. Black's Law Dictionary does not include the term diplomalic, but refers to the word diplomacy, which it defines as:

I . The art and practice of conducting negotiations between national governments.

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

(1Oth ed. 20 14). Consular functions are generally not diplomatic funct ions, but the performance of consular functions and the establishment that one has performed diplomatic duties arc not mutuallv

2 -exclusive.

2 See general(\' Vienna Convention on Diplomatic Relations, Art. 3 et seq., 23 U.S.T. 3227, 500 U.N.T.S. 95, given effect by the Diplomatic Relations Act of 1978, 28 U.S.C. § 252.

2

.

Maner ofS-M-B-

The term semi-diplomatic is undefined by any source. Common definitions of the term semi include: "to some extent," "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 are of "a custodial , clerical , or menial nature." We must evaluate the position held and the duties performed to determine whether the Applicant is eligible for adjustment of status under Section 13.

The record reflects that the Applicant was employed as a "Personnel Officer" at the New York. His duties included: office

management; drafting minutes, letters, and speeches; arranging, attending, and taking notes at various meetings ; and recording votes. The Applicant does indicate in hi s sworn statement that he was invo lved in negotiations, but the statement does not provide sufficient detail to determine his specific rol e in these negotiations. Based on the Applicant's description of his work duties and a letter from the · his employment in the United States primarily involved duties of a clerica l nature, providing administrative support to the office. None of the dtlties as described in the record involved engaging in negotiations between national governments or on foreign policy issues or other functions of a diplomat, but instead reflect clerical and administrati ve duties. Routine duties that an individual pertorms for the country o f accreditation are not diplomatic or semi-diplomatic duties, as contemplated under Section 13, because they concern the country of accreditation only and not diplomacy between governments.

Accordingly, the record does not establish that the Applicant performed diplomatic or semi­diplomatic duties as required for eligibility under Section 13. We would normally end our review a fter determining that an applicant had not satisfied the threshold requirement of showing 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 below.

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 correctl y interpret the meaning of the words in the context of this limited benefit. There may be man y reasons for why a former diplomat is unwi lling to return to hi s or her country, including medical, educational, and professional reasons, or general country cond itions. The legislative history shows that Congress originally intended the benefit for those unable to return to the country 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 a tter Congress ~'cons idered 74 such 'cases and rejected all but 4 of them for failure to sati sfy the criteria clearly estab li shed by the legislative history of the 1957 Jaw." 1-I .R. Rep. 97-264, at 33 ( 1981 ). We therefore interpret this requirement narrowly consistent with the congressional intent. Reasons that may be considered compelling are

3 Merriam-Webster, Semi, (Apr. 20 18), hup:llwww.merriam-webster. cumldictiona!JlSemi. ~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). ·

" .)

.

Mauer ofS-M-B-

those resulting from a fundamental political change that because of the pri0r diplomatic service constrains the applicant's return to the home country.

The Applicant asserts in his application that he would face retribution from Bangladeshi government officials over alleged illegal actions he refused to perfonn while employed as a Personnel Officer. He contends that these officials improperly terminateq his employment and threatened to harm him and his family if he returned to Bangladesh. The Applicant also asserts that all the member·s of his family, except himself, arc active members of the and would become targets of the ruling

if they returned to Bangladesh. He states that members have threatened and attacked his family members in Bangladesh. Additiomilly, the Applicant contends that he and hi s family will be in danger in Bangladesh after returning from the United States because they will be perceived as wealthy and become a target for kidnapping and extortion.

On appeal the Applicant reasserts in general terms the claims made in his application, contending that the Director erred by not recognizing the compelling reasons that prevent his return to Bangladesh, but providing no additional evidence to substantiate his claims. When signing the appeal in December 2017, the Applicant had indicated that he would file a more substantive brief within 90 days, but has not yet done so more than four months later.

The Applicant has not provided any evidence beyond his own assertions to corroborate that he and his family would be specifically targeted by government officials due to his work in the United States. There is no indication in the record that he or any of his family members have been contacted and threatened with violence by go~ernment officials alter ending his employment in 2015. Regarding threats of violence and attacks on his family in Bangladesh, the Applicant has not provided any evidence from hi s family members or others, such as affi davits or pol ice reports, to corroborate these attacks or show that he and his family would be specifically targeted by members if he returns to Bangladesh. Similarly: the Applicant has not provided any evidence to substantiate his speculative claim that he and his family would be specifically targeted for violence simply for having resided in the United States. We also note that the Applicant indicated on a statement provided with his application that, if granted LPR status, he wished to return to Bangladesh to sell hi s property, which undermines hi s claim that he is unable to return .

After reviewing the entirely of the record, we find that the Applicant has not established that there are compelling reasons that prevent his return to Bangladesh. And, we additionally find that the record does not support a claim that the Applicant performed diplomatic or semi-diplomatic duties. Accordingly, we need not address whether he has established that his adj ustment of status under Section 13 is in the national interest or warrants approval as a matter of discretion, and his application will remain denied.

ORDER: The appeal is dismissed.

Cite as Moller l~/S-M-B-, I D# 1398127 (AAO Apr. 26, 20 18)

4