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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