Interim Decision #2063
MATTER OF Li
In Deportation Proceedings
A-18431665
Decided by Board November 19, 1970
Motion to reopen deportation proceedings is not granted merely because a
third preference visa petition on behalf of respondent was approved subsequent to the entry of a final order of deportation.
ON BEHALF OF RESPONDENT: David C. Marcus, Esquire
215 West Fifth Street
Los Angeles, California 90013
(Brief filed)
Respondent moves to reopen deportation proceedings. The
motion will be denied.
The record before us reflects the following uncontroverted
facts: On September 4, 1969, this Board entered an order dismissing respondent's appeal from an order of a special inquiry officer
finding her deportable as an overstayed visitor and granting her
a period of ten days within which to depart voluntarily from the
United States. In our order, in accordance with Matter of Villegas-Aguirre, Interim Decision No. 1940 (BIA, 1969) , we authorized voluntary departure within ten days from the date of our decision. No further extension of the voluntary departure time was
granted and on respondent's failure to depart the alternate order
of deportation became effective.
Thereafter, on January 15, 1970, the District Director approved a third preference visa petition filed in respondent's behalf. Called in to surrender for deportation, respondent on March
16, 1970 filed a petition under section 106(a) of the Immigration
and Nationality Act in the United States Court of Appeals for
the Ninth Circuit, seeking review of our order of. September 4,
1969. The petition was dismissed as untimely, rehearing was denied, and on October 26, 1970 respondent's certiorari petition was
denied by the Supreme Court, Li v. Rosenberg, No. 5523, October
Term, 1970.
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Interim Decision #2063
The theory of the motion now before us is that the District
Director's approval of the respondent's visa petition somehow
nullified the outstanding order for her 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 a permanent resident under section 245 of the Act without having to leave the
United States. We reject that notion.
The adjudication of third preference visa petitions and of deportability are entirely separate functions which are committed to
entirely distinct tribunals. Such visa petitions are adjudicated by
District Directors and are reviewable on appeal to the Service's
Regional Commissioners, 8 CFR 103.1 (e) (2). Deportability and
applications for voluntary departure are adjudicated by special inquiry officers in proceedings under section 242 (b) of the Act, and
such adjudications are reviewable on appeal to this Board, 8 CFR
3.1 (b) (2).
The motion to reopen rests on the erroneous premise that approval of the visa petition "entitled [respondent] to adjust status
in the United States to that of a lawful permanent resident"
(Motion to reopen, p. 5). Approval of the visa petition had no
such effect. Visa petition approval merely paves the way for later
eligibility to permanent residence at such time as a quota number
becomes available. If the beneficiary of the approved visa petition
is permitted to remain in the United States until his turn is
reached on the waiting list, visa availability is merely one of the
eligibility requirements of section 245 adjustment that he is
thereby enabled to meet. There are other requirements, and even
if he meets them all, adjustment of status to permanent residence
does not automatically follow; administrative discretion must still
be favorably exercised. If the beneficiary is outside the United
States when the quota number becomes available, he can then
apply to a United States consul for the issuance of an immigrant
visa upon which to seek admission for permanent residence. In either event, approval of a visa petition is merely a starting point
on the road to permanent residence. In itself, it confers no vested
rights to permanent residence.
The court cases cited by respondent all dealt with the question
of the courts' jurisdiction to review various types of administrative determinations under section 106(a) of the Act. None purThe third preference portion of the Philippine quota is now available
only to aliens with a priority date of September 15, 1968, according to the
latest State Department Visa Office Bulletin.
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Interim Decision #2063
ports to hold that approval of a visa petition has the effect of nullifying an outstanding deportation order. Although it may be
more convenient for an alien to pursue such collateral remedies
while still in the United States, there is nothing in the law which
requires that deportation proceedings be withheld or that execution of a deportation order be stayed during the pendency of such
collateral proceedings. See Siu Fung Luk v. Rosenberg,
(S.D. N.Y., 1969).
While it may be true that deportation of the respondent will
render her ineligible to receive a visa under section 212(a) (17)
of the Act unless she first receives permission to reapply, that is
a condition which confronts all deportees. The mere fact that she
has previously spurned the opportunity to depart voluntarily
without the entry of a deportation order and that she has unsuccessfully litigated our prior order does not require that the privilege of voluntary departure must once more be made available to
her. See Fan Wan Keung v. INS,
