FLORES

Interim Decision #2253




                           MATTER OF FLORES
                       In Deportation Proceedings
                                 A-19456816

                 Decided by Board December 21, 1973
Respondent was admitted to the United States on November 22, 1970 as a
 temporary visitor for a period to expire on May 22, 1971. Although thereafter
 permitted to remain in this country as the beneficiary of an approved third
 preference visa petition, she is nevertheless an overstayed visitor and the
 termination of her indefinite voluntary departure by the issuance of an order
 to show cause without other notice, was proper.
CHARGE:
  Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 12o1(aX2))—nonlmmtgrantremained longer.
ON BEHALF OF RESPONDENT:                        ON BEHALF OF SERVICE:
 Emanuel Braude, Esquire                         Reece R. Robertson
 215 West 5th Street                             Trial Attorney
 Los Angeles, California 90013


   This is an appeal from an order of an immigration judge finding
the respondent to be deportable, denying her request for termination of the proceedings, and granting her the privilege of voluntary departure. The appeal will be dismissed.
   The respondent is a 24-year-old unmarried female alien, a native
and citizen of the Philippines, who was admitted to the United
States on November 22, 1970 as a nonimmigrant visitor for a
period to expire May 22, 1971. On March ,15, 1971, the Deputy
District Director of the Immigration and Naturalization Service at
New York, New York, sent her a notice that a third preference
visa petition in her behalf had been approved. (Ex. 2). A check
mark was placed opposite the following printed paragraph in the
notice:
 The petition has been approved. The petition states that the beneficiary is in
 the United States and will apply for adjustment of status to that of a lawful
 permanent resident. A visa number is not presently available; therefore, the
 beneficiary may not apply for adjustment of status to that of a permanent
 resident. The beneficiary has been or will be notified concerning his stay in
 the United States.

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                                             Interim Decision #2253
 It is agreed that, before issuance of the Order to Show Cause on
March 2, 1973, the Service did not communicate with the respondent further concerning her stay in the United States.
   At the deportation hearing before the immigration judge, respondent conceded the truth of the factual allegations of the Order
to Show Cause but denied deportability. Counsel moved for termination of the proceedings on the ground that respondent could not
be considered an overstay before the Service notified her concerning her stay in the United States, as it had undertaken. The
immigration judge denied the termination request. On appeal,
counsel presses the same contention. We have previously pointed
out that mere approval of a third preference visa petition confers
no right to remain in the United States until the alien's turn is
reached on the waiting list, Matter of Li, 13 L & N. Dec. 629 (B IA
1970), summarily affirmed Li v. Rosenberg, unreported (C.A. 9, No.
26,689, February 5, 1971), cert. denied Li v. INS, 

(1971). The District Director's statement that, "You will be advised
later concerning your stay in the United States" can by no means
be construed as a grant of an extension of the respondent's
nonimmigrant status. The most that can be read into this statement is that no decision had been as yet reached whether the
respondent would be permitted to remain here as a deportable
alien with indefinite voluntary departure after her stay expired,
without the institution of deportation proceedings. Cf. Matter of
Gallares, Interim Decision No. 2177 (BIA 1972). The District
Director's decision not to grant indefinite voluntary departure was
manifested by his issuance of the order to show cause on March 2,
1973. The District Director's decision in that regard is not reviewable by the immigration judge or by us, Matter of Geronimo, 

 (MA 1971).
  Respondent has not been prejudiced by the Service's failure to
communicate with her further concerning her stay in the United
States. She has been granted the privilege of voluntary departure.
If she departs within the time allotted, or -within any extension
which the District Director may grant, there will be no impediment
on this account to her obtaining an immigrant visa once her turn is
reached on the waiting list.
  ORDER: The appeal is dismissed.
  Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the District Director; and
in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.


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