Interim Decision #2185

Interim Decision #2185

MATTER OP ALA.R.A.S

In Deportation Proceedings

A-19727506

A-19717874

Decided by Board February 23, 1973'

Approval of a third preference visa petition on behalf of a nonimmigrant alien

illegally in the United States does not restore the alien to a valid nonimmigrant status nor does it directly affect the alien's right to remain in the

United States before the visa at least becomes available. The withholding or

institution of deportation proceedings against such alien is a matter solely

within the province of the District Director (Matter of Geronimo, 13 I. & N.

npr. 6g0).

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J--Remained longer

(both rcopondento)

ON BEHALF OF RESPONDENTS:

Samuel D. Myers, Esquire

134 North LaSalle Street

Chicago, Illinois 60602

(Brief filed)

Of counsel:

Irving I. Freedman, Esquire

This case relates to a husband and wife, natives and citizens of

the Philippines, who were admitted into the United States as

nonimmigrant visitors for pleasure. They remained longer than

authorized by the Service. At a deportation hearing held on May

18, 1972 the special inquiry officer found them deportable as

charged. Thereafter, on July 17, 1972, further hearing was held

and the special inquiry officer granted the respondents' application for voluntary departure within a period of 30 days in lieu of

deportation with an alternate order of deportation to the Philippines. The finding of deportability was established by evidence

which is clear, convincing and unequivocal.

The record reflects that on December 30, 1970 the female

respondent's third preference visa petition was approved. The

male respondent has no approved visa petition. Pursuant to the

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Interim Decision #2185

United States Immigration Service policy a decision was made not

to grant the respondents extended voluntary departure, and the

respondents were ordered to appear for their deportation hearing.

Prior thereto the respondents filed a complaint in the United

States District Court, Northern District of Illinois, Eastern Division seeking (1) to cancel the scheduled deportation proceedings

and (2) a grant of indefinite voluntary departure until such time as

they are eligible to apply for permanent resident status in accordance with the Service's internal Operations Instrutions.

On appeal, counsel for respondents contends, in effect, that the

District Director's approval of the female respondent's visa petition somehow suspended the grounds for deportation, so that she

is permitted to remain here indefinitely until such time as her

turn is reached on the quota list, after which she will be eligible to

apply for adjustment of her status to that of permanent resident

under section 245 of the Act without having to leave the United

States. Counsel further contends that because the decision to

institute proceedings against the female respondent was contrary

to a Service policy set forth in Service Operations Instructions,

due process of law requires that she be confronted with the reason

why she was treated differently and the evidence substantiating

that reason, and given an opportunity to refute such evidence. We

reject counsel's contentions.

The female respondent was admitted as a nonimmigrant until

January 6, 1971, received no extension beyond that date, and has

remained longer than permitted. The approval thereafter of her

visa petition and its current validity did riot restore her to a valid

nonimmigrant status. The approval of a visa petition merely paves

the way for ultimate issuance of an immigrant visa. It does not

directly affect the alien's right to enter or remain in the United

States before the visa itself is issued or at least becomes available.

Indeed, most beneficiaries of visa petitions are aliens residing

abroad, who gain no residence rights here by the mere approval of

the petition. Respondent gained no added rights by the circumstance that she happened to be in the United States, rather than

abroad, when her visa petition was approved.

All of counsel's contentions made on appeal challenge the

District Director's action in starting the deportation proceedings.

Obviously, no useful purpose would be served in making a record

on this issue before the special inquiry officer unless he has power

to review the District Director's action in this regard. We adhere

to the view expressed in Matter of Geroninto, 13 I. & N. Dec. 680

(BIA, 1971) that ". . . it is within the District Director's prosecutive discretion whether to institute deportation proceedings

against a deportable alien or temporarily to withhold such pro-

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ceedings. Where such proceedings have begun, it is not the

province of the special inquiry officer (or of this Board on appeal)

to review the wisdom of the District Director's action in starting

the proceedings, but to determine whether the deportation charge

is sustained by the requisite evidence.. . ."

We have consistently held that whether to proceed against a

deportable alien or to withhold institution of deportation proceedings while he pursues a collateral remedy is completely within the

prosecutive discretion of the District, Director, which neither the

special inquiry officer nor this Board may review, Matter of

Gercmimo, supra. The courts have endorsed this view Manantan v.

INS, 425 F.2d 693 (C.A. 7, 1970); Bowes v. INS, 443 F.2d 30 (C.A. 9,

1971); Spata v. INS, 422 F.2d 1013 (2 Cir., 1971), cert. denied 404

U.S. 875. See also Lumarque v. INS, (C.A. 7, No. 71-1886, June 12,

1972), in which the court, in commenting on the applicable Service

Operations Instructions, said in pertinent part as follows: ". . .

The operating instruction clearly contemplates a discretionary use

of the voluntary departure procedure. A grace normally afforded

does not become an enforceable right merely because it is described as a normal practice in an internal operating instruction."

Accordingly, the following order will be entered.

ORDER: The appeals are hereby dismissed.

It is further ordered that, pursuant to the special inquiry

officer's order, the respondents be permitted to depart from the

United States voluntarily within 30 days from the date of this

decision or any extension beyond that time as may be granted by

the District Director; and that, in the event of failure so to depart,

the respondents shall be deported as provided in the special

inquiry officer's order.

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