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, 402 U.S. 947 

(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, 13 I. & 

N. Dec. 680 (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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