Khapabhai Dahyabhai Patel and Pramilaben Khapabhai Patel v. Immigration and Naturalization Service

In August 1970, Khapabhai D. Patel (Patel), a citizen of India, entered the United States as a nonimmigrant student authorized to stay until July 31,1974. Patel’s wife, Pramilaben K. Patel, entered the United States in July 1972 as the spouse of a non-immigrant student, also authorized to stay until July 31, 1974. The Patels failed to depart at the end of their authorized stay, and the Immigration and Naturalization Service (INS) issued an Order to Show Cause and Notice of Hearing which charged that the Patels were deportable. At a deportation hearing held in October 1977, the Patels admitted their deportability, but applied for adjustment of status under 8 U.S.C. § 1255 , and suspension of deportation under 8 U.S.C. § 1254 (a)(1). The Immigration Judge denied both applications and granted voluntary departure. The Board of Immigration Appeals (Board) affirmed. We affirm in part and reverse and remand in part.

I

8 U.S.C. § 1255 provides that the Attorney General, in his discretion, may adjust the status of a deportable alien to that of an alien lawfully admitted for permanent residence. To be eligible for such discretionary action an alien must, among other things, be eligible…