AGARWAL

                                                  Interim Decision #1948




                           MATTER OF AGARWAL

                       In Deportation Proceedings
                                A-17230653
                   Decided by Board March 18, 1969
Currently pending litigation of a collateral issue (denial of respondent's visa
 petition) in the United States District Court is no justification for the termination or postponement of the deportation proceedings against respondent.
CHARGE:
  Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant—remained longer.

ON BEHALF OF RESPONDENT:        Hiram W. Ewan, Esquire
                                1011 North Broadway
                                Suite 203
                                Los Angeles, California 90012

   This is an appeal from the order of the special inquiry officer
finding respondent deportable as charged but granting him the
privilege of voluntary departure on or before January 2, 1969.
  The respondent is a 89-year-old married male alien, a native
and citizen of India, who was admitted to the United States at
Honolulu, Hawaii on or about May 25, 1966, being admitted as a
nonimmigrant temporary worker and authorized to remain in the
United States until June 3,1968. He remained beyond that date.
He was subsequently granted the privilege of voluntary departure
by a United States immigration officer in lieu of the institution of
deportation proceedings, but he did not depart within the time
designated. The instant deportation proceedings were then commenced.
  The respondent admits the allegations of fact contained in the
order to show cause and concedes that he is deportable as
charged.
  On appeal, the respondent contends that the order to show
cause should be dismissed pending the outcome of a petition for
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 Interim Decision #1948
 judicial review which is currently pending in the United States
 District Court to review the decision of the District Director who
 denied the respondent's third preference visa petition. In his appeal to this Board, respondent states that he should have been
classified as a qualified member of the professions and that his
third preference visa petition should have been approved.
   This Board has no jurisdiction to adjudicate a third preference
visa petition. The jurisdiction to do that lies with the District
Director under 8 CFR 103.1(f), and the administrative appeal
from the District Director's decision lies with the Regional Commissioner of the Immigration and Naturalization Service under
the provisions of 8 CFR 108.1(e) (2).
   The fact that the respondent has filed a court proceeding relative to this visa petition matter is no reason or justification for
the termination of the deportation proceedings against him. He
has admitted that he is deportable as charged and his deportation
is established by evidence in the record that is clear, unequivocal
and convincing. To postpone deportation proceedings while a collateral issue is being litigated, which might or might not result in
a favorable decision for respondent, would allow a deportable
person to avoid the adjudication of his deportability for perhaps
long periods of time by the simple expedient of filing a judicial
proceeding or proceedings. We hold that respondent's claim that
the order to show cause should be dismissed pending the outcome
of his present litigation in the United States District Court is
without merit.
   We find that the respondent is deportable as charged. We will
allow him the privilege of voluntary departure within 30 days
from the date of this decision, which is the same period of time
granted to him by the special inquiry officer. Any extension of
this time is solely within the jurisdiction of the District Director
under the provisions of 8 CFR 244.2.
   ORDER: It is ordered that the appeal be and it is hereby dismissed.
  It is further ordered that, " pursuant to the special inquiry
officer's order, the respondent 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 respondent shall be deported as provided in the special
inquiry officer's order.




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