Interim Decision #2273
MATTER OF MERCED
In Deportation Proceedings
A-20127277
A-19571758
Decided by Board March 21, 1974
The grantingto an alien, after he has become deportable, of permission to
iemiin in the United States until further notice as the beneficiary of an
s
approved visa petition in accordance with Operations Instruction 242.10(a)
does not confer on the alien beneficiary any irrevocable right or privilege and
does not preclude the district director from instituting deportation proceedings, in his discretion, against the alien.
CHARGE:
Act of 1952—Seetion 241(a)(2) IS U.S.C. 1251(a)(2)]— Nonimmigrant visitors for
pleasure—remained longer than permitted.
ON BEHALF OF RESPONDENTS: George N. P. Pakao, Esquire
31 West Congress Street
Savannah, Georgia 31401
This is an appeal from an order of an immigration judge, dated
August 16, 1972 finding the respondents deportable as charged,
denying their request to terminate the proceedings and directing
their deportation to the Philippines. The appeal will be dismissed.
The respondents are aliens, husband and wife, natives and
citizens of the Philippines. The husband entered the United States
on January 21, 1971 and his wife entered the United States on
April 27, 1970. They were admitted as nonimmigrant visitors for
pleasure. They remained beyond the time authorized by the
Service.
The record shows that on October 28, 1971, the District Director
approved a visa petition on behalf of the male respondent and
advised the male respondent that he was granted permission to
remain in the United States until further notice. The granting of
continuation of this privilege was conditioned upon retention of his
status established in the approved visa petition. On June 16, 1972,
the District Director advised the male . respondent that his visa
petition was approved. However, authorization for the respond-
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Interim Decision #2273
ents to remain in the United States was revoked. On July 26, 1972
Orders to Show Cause were issued wherein it is charged that the
respondents are subject to deportation as overstays pursuant to
section 241(aX2) of the Immigration and Nationality Act.
On appeal counsel contends (1) that the revocation of the
permission to remain in the United States until an immigrant visa
is available to the respondents is an arbitrary violation of the
immigration policy and against the interests of the United States;
(2) that the deportability of the respondents on the grounds set
forth in the orders to show cause was based on an arbitrary action
of the District Director; and (3) that the respondents meet the
requirements of Operations Instructions 242.10, inasmuch as the
male respondent is the beneficiary of an approved third preference
petition. We reject counsel's contentions.
The male respondent was admitted as a nonimmigrant and
received an extension of stay until September 21, 1971. The
District Director's letter of October 28, 1971 may have given the
respondent the erroneous impression that it constituted an indefinite extension of stay. Actually, by that time the respondent was
no longer in status, and was deportable as an overstayed visitor.
The District Director did not confer on the male respondent any
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 immigration judge
may review, Matter of Geronimo, 13 I. & N. Dec. 680 (BIA. 1971);
Matter of Gallares, Interim Decision 2177 (BIA 1972). The courts
have endorsed this view, Manantan v. INS, 425 F2d 693 (C.A. 7,
1970); Bowes v. District, Director,
443 F.2d 30 (C.A. 9, 1971); Spata v.
INS,
442 F.2d 1013 (C.A. 2, 1971), cert. denied
404 U.S. 875. The
courts have also endorsed our view that a service policy of
leniency with respect to beneficiaries of approved visa petitions
confers no immutable right to remain here permanently, Armstrong v. INS,
445 F.2d 1395 (C.A. 9, 1971); Vassiliou v. District
Director, 461 F2d 1193 (C.A. 10, 1972); Discaya v. INS,
339 F.Supp.
1034 (N.D. Ill. 1972).
There is no merit to the respondents' claim that they cannot be
deported because they came within the definition of the Immigration and Naturalization Service's internal operating instructions,
Operations Instruction 242.10(a). In Lumargue v. INS, unreported
(7 Cir. No. 71-1886, June 12, 1972), the court, in commenting on the
applicable Service Operations Instructions, stated in pertinent
part as follows: "... The operating instruction clearly contemplates a discretionary use of the voluntary departure procedure. A
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Interim Decision #2273
grace normally afforded does not become an enforceable right
merely because it is described as a normal practice in an internal
operating instruction." In 'a recent case, Alaras v. INS, (7 Cir. No.
73-1291, August 14,1973), the court, citingLumarque, said that the
language of the pertinent Operations Instructions is permissive
rather than mandatory.
In his brief counsel objects to the appearance of the Acting
District Director in the role of the trial attorney. In our examination of the record, it is clear that there is a clear separation of
functions. The immigration judge confined himself entirely to the
performance of his quasi-judicial duties and the Acting District
Director performed his prosecutive function and in no way derogated from the authority of the immigration judge.
In our review of the record, we find that the respondents were
accorded the requisite of a due process hearing, that the decision
of the immigration judge was based upon the evidence adduced at
the hearing, that the evidence upon which the decision was based
is clear, convincing and unequivocal, and that the immigration
judge properly applied the pertinent legal principles. Accordingly,
we shall affirm the immigration judge's order and dismiss the
appeal.
ORDER: The decision of the immigration judge is affirmed and
the appeal is dismissed.
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