GALLARES

 Interim Decision #2177




                          MATTER OF GALLARES

                        In Deportation Proceedings

                                  A-19662566
                  Decided by Board December 29, 1972
The beneficiary of an approved third preference visa petition who, pending
  availability of a visa number, was permitted to remain in the United States
  until further notice upon the condition of retention of third preference status,
  received, at most, an open-ended voluntary departure opportunity and not an
  irrevocable right or privilege to remain here indefinitely. Respondent, through
  his subsequent marriage to such a third preference beneficiary, could succeed
  derivately to no greater rights; he remains deportable under sections 241(a)(2)
  and (9) of the Immigration and Nationality Act despite his marriage.*
CHARGES:
  Order: Act of 1952—Section 241(aX9) [ 8 U.S.C. 1251(a)(9)]—Failed to comply
                        with the conditions of nonimmigrant status—student.
  Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Remained longer
                          than permitted as nonimmigrant student.
ON BEHALF OF RESPONDENT:                         ON BEHALF OF SERVICE:
  Dan P. Danilov, Esquire                          William L. Pattillo
  3828 Seattle-First National                      District Director
    Bank Building
  Seattle, Washington 98104


  This matter is before the Board on what appears to be an
untimely appeal from an order of a special inquiry officer dated
September 21, 1972, finding the respondent deportable and granting him until October 22, 1972 to depart voluntarily. Present
counsel for respondent has also filed a motion to reopen and
reconsider. To avoid any question as to our jurisdiction to consider
respondent's case on the merits, we shall take the case on certification under 8 CFR 3.1(c) and enter an appropriate order.
  Respondent is a 35-year-old male alien, native and citizen of the
Philippines, who was admitted to the United States on or about
June 3, 1971 as a nonimmigrant visitor for business. His nonimmigrant status was thereafter on July 15, 1971 changed to that of a

 * See also, Matter of Merced, Interim Decision No. 2273 (BIA, 1974).

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student to permit him to. attend the Loyola University of the
South at New Orleans and he was authorized to remain here in
that status until July 15, 1972. On January 17, 1972, the Seivice's
District Director at Portland, Oregon received from respondent an
application for permission to transfer to the University of Portland. The application recited that he had last attended Loyola
University on'December 20, 1971 and was then attending Portland
University in evening classes 12 hours a week. On January 28,
1972, respondent filed an application for adjustment of status to
that of permanent resident under section 245 of the Immigration
and Nationality Act. On April 14, 1972 the District Director denied
respondent's section 245 application and, concluding that he had
violated his student status, gave him until May 14, 1972 to depart
voluntarily without the institution of deportation proceedings. He
failed to depart and an order to show cause in deportation
proceedings was issued, charging that he was deportable under
section 241(a)(9) of the Act for having failed to comply with the
conditions of his student status by accepting unauthorized employment and by transferring to the University of Portland without
Service permission. At the deportation hearing, an additional
charge was lodged under section 241(aX2) of the Act, charging that
respondent had remained longer than permitted after his section
245 application had been denied and he had been given until May
14, 1972 to depart.
   The deportation hearing was held at Portland, Oregon and
respondent was there represented by Gerald H. Robinson, Esquire,
an experienced immigration lawyer. Respondent renewed his section 245 application but later withdrew it when he was unable to
establish the requisite visa eligibility. On July 18, 1972 the District
Director denied respondent's application for a one-year extension
of his temporary stay. At the deportation hearing respondent
requested reinstatement to his student status.
   On September 21, 1972 the special inquiry officer entered his
order. He concluded that he lacked power to reinstate respondent
to his student status. The unauthorized employment charge was
found not sustained by the evidence. The special inquiry officer
concluded, however, that both the section 241(x)(9) charge in the
order to show cause and the lodged section 241(a)(2) charge were
sustained, finding that respondent had violated the terms of his
student status by his unauthorized transfer to the University of
Portland and had abandoned his student status when he filed his
section 245 application. The special inquiry officer granted voluntary departure to October 22, 1972, with provision for an alternate
order of deportation to the Philippines if respondent failed to
depart. A copy of the special inquiry officer's order was mailed to

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 respondent's attorney, Mr. Robinson. No copy was sent to the
 respondent. On October 16, 1972, a form letter was mailed to
 respondent, notifying him that he must depart by October 22, 1972.
 On October 19, 1972 the District Director extended the departure
 time to October 29, 1972.
    In the meantime, respondent retained his present attorney,
 whose office is in Seattle, Washington. On October 25, 1972 counsel
 filed with the District Director at Portland a notice of, appeal to
                                      .


 this Board from the special inquiry officer's decision and requested
 the District Director not to execute the alternate order of deportation pending action by this Board on the appeaL The District
 Director issued a warrant of deportation and directed respondent
 to surrender for deportation on November 9, 1972. On November 2,
 1972, counsel sent us a copy of a motion he had filed for reopening
 and reconsideration. The motion, which is supported by affidavit,
 recites that on September 14, 1972 respondent married Charito C.
 Pedro, a native of the Philippines and a citizen of Canada, who is
 the beneficiary of a third preference visa petition approved March
 21, 1972. In the letter of that date notifying Miss Pedro (then
 unmarried) of the approval, the District Director advised her that
 as an immigrant visa was not yet available and she was therefore
 ineligible to apply for section 245 adjustment, she was permitted to
 remain in the United States until further notice, conditioned upon
 her retention of her third preference status. The notice further
 stated pro forma that the permission granted to remain in the
United States applies also to her spouse and children, if any.
   The District Director opposes the appeal as untimely, citing 8
CFR 242.21. He also contends that service of the special inquiry
officer's order on Mr. Robinson, respondent's then attorney, without also serving respondent himself is sufficient to comply with
the requirements of 8 CFR 292.5. In support of his contention that
the notice of appeal should be considered as filed timely, counsel
for respondent asserts that it has been the unvarying practice of
the Service in the Portland District to serve not only the attorney
but also the alien. This contention is supported by the affidavit of
Mr. Robinson, respondent's former attorney.
   Both in his notice of appeal and in his motion papers, counsel
takes the position that respondent's status has been altered by his
marriage to Miss Pedro. He argues, in effect, that as her spouse
respondent is the beneficiary of the March 21, 1972 grant of
permission to her spouse to remain here with her. In order that we
might give mature consideration to this claim, on November 7,
1972 we stayed deportation pending further order of this Board.
The record before us does not contain a transcript of the hearing
before the special inquiry officer and we have been informed that

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because of mechanical difficulty no transcript can be made. We
have concluded that we can decide the merits of the case without
it.
    We need not ascertain what in fact was the unvarying practice
in the Portland District, nor need we rule on the timeliness of the
attempted appeal. In order that we may do justice to the respondent without regard to possibly difficult jurisdictional problem; we
shall take this case on certification under 8 CFR 3.1(c).
    From the undisputed facts of record,. we are satisfied that
respondent's deportability has been established by clear, convincing and unequivocal evidence. We agree with the special inquiry
officer that he lacked power to reinstate respondent to his student
status, Matter of Sourbis, 

 (B IA, 1965). Indeed,
from the notice of appeal filed by present counsel, it does not
appear that deportability is seriously questioned, except in relation t9 the factors raised in the motion to reopen, which we discuss
next.
   The motion to reopen asserts, in substance, that respondent's
marriage on September 21, 1972 to Charito C. Pedro "has a
substantial effect upon the Decision in this ease." We think not.
We need not determine whether, by his marriage to Miss Pedro,
respondent became automatically endowed with whatever rights
or privileges, if any, were granted to her unnamed and as -yetunascertained "spouse" by the Service's letter of March 21, 1972.
Assuming, arguendo, that on his marriage respondent succeeded
to those rights and privileges, they could not in any event exceed
those conferred on the then Miss Pedro herself. What she received
was, at most, an open-ended voluntary departure opportunity and
not an irrevocable right or privilege to remain here indefinitely.
  As a nonimmigrant who had sought to become a permanent
resident under section 245, Miss Pedro had ceased to maintain her
valid nonimmigrant status and had become deportable. In approving her visa petition, the District Director informed her that she
would be permitted to remain in the United States until further
notice, pending availability of a visa number. In doing this, the
District Director conferred on her no irrevocable right or privilege
of remaining here permanently. All he did was to refrain temporarily from instituting deportation proceedings against a deportable alien, an exercise of prosecutive discretion which is committed
exclusively to the Service's enforcement officials and which neither we nor the special inquiry officers may review, Matter of
Geronimo, 

 (B IA, 1971). Approval of a visa
petition conveys no vested right to remain, Matter of Li, 

 (BIA, 1970). The courts have endorsed our view that a
Service policy of lenity with respect to beneficiaries of approved
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visa petitions confers no immutable rights generally and certainly
no enforceable right to remain here permanently, Armstrong v.
INS, 

 (C.A. 9, 1971); Vassiliou v. District Director, 461
 F2d 1193 (CA. 9,1972); Discava v. INS, 339 F: Supp. 1034 (N.D. Ill.,
 1972). In net effect, all that Miss Pedro obtained from the District
Director's letter of March 21, 1972 was the privilege, as a deportable alien, of departing voluntarily without the institution of deportation proceedings, with no terminal date for departure fixed as
yet. In marrying her thereafter,. respondent could succeed derivatively to no greater rights.
   The special inquiry officer granted respondent the privilege of
voluntary departure, the maximum form of discretionary relief for
which he was then or is now eligible. If we restore that privilege 'to
him now, he can have no cause for complaint. We shall leave it to
the District Director to fix the departure time, taking into account
the situation of the respondent's wife and the Service's enforcement policies generally pertinent to such a situation.
  ORDER: The decision of the special inquiry officer is affirmed,
insofar as concerns the adjudication of respondent's deportability.
   Further orderyThe outstanding order and warrant of deportation are withdrawn, and the respondent is permitted to depart
voluntarily from the United States within such time and under
such conditions as may be fixed by the District Director; and upon
failure - of the respondent so to depart when and as directed, the
respondent shall be • deported as provided in the special inquiry
offices. order,




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