Interim Decision #1948 

MATTER OF AGARWAL 

In Deportation Proceedings 

A-17230653 

Decided by Board March 18, 1969 

Currently pending litigation of a collateral issue (denial of respondent's visa 

petition) in the United States District Court is no justification for the termination or postponement of the deportation proceedings against respondent. 

CHARGE: 

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]—Nonimmigrant—remained longer. 

ON BEHALF OF RESPONDENT: Hiram W. Ewan, Esquire 

1011 North Broadway 

Suite 203 

Los Angeles, California 90012 

This is an appeal from the order of the special inquiry officer 

finding respondent deportable as charged but granting him the 

privilege of voluntary departure on or before January 2, 1969. 

The respondent is a 89-year-old married male alien, a native 

and citizen of India, who was admitted to the United States at 

Honolulu, Hawaii on or about May 25, 1966, being admitted as a 

nonimmigrant temporary worker and authorized to remain in the 

United States until June 3,1968. He remained beyond that date. 

He was subsequently granted the privilege of voluntary departure 

by a United States immigration officer in lieu of the institution of 

deportation proceedings, but he did not depart within the time 

designated. The instant deportation proceedings were then commenced. 

The respondent admits the allegations of fact contained in the 

order to show cause and concedes that he is deportable as 

charged. 

On appeal, the respondent contends that the order to show 

cause should be dismissed pending the outcome of a petition for 

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Interim Decision #1948 

judicial review which is currently pending in the United States 

District Court to review the decision of the District Director who 

denied the respondent's third preference visa petition. In his appeal to this Board, respondent states that he should have been 

classified as a qualified member of the professions and that his 

third preference visa petition should have been approved. 

This Board has no jurisdiction to adjudicate a third preference 

visa petition. The jurisdiction to do that lies with the District 

Director under 8 CFR 103.1(f), and the administrative appeal 

from the District Director's decision lies with the Regional Commissioner of the Immigration and Naturalization Service under 

the provisions of 8 CFR 108.1(e) (2). 

The fact that the respondent has filed a court proceeding relative to this visa petition matter is no reason or justification for 

the termination of the deportation proceedings against him. He 

has admitted that he is deportable as charged and his deportation 

is established by evidence in the record that is clear, unequivocal 

and convincing. To postpone deportation proceedings while a collateral issue is being litigated, which might or might not result in 

a favorable decision for respondent, would allow a deportable 

person to avoid the adjudication of his deportability for perhaps 

long periods of time by the simple expedient of filing a judicial 

proceeding or proceedings. We hold that respondent's claim that 

the order to show cause should be dismissed pending the outcome 

of his present litigation in the United States District Court is 

without merit. 

We find that the respondent is deportable as charged. We will 

allow him the privilege of voluntary departure within 30 days 

from the date of this decision, which is the same period of time 

granted to him by the special inquiry officer. Any extension of 

this time is solely within the jurisdiction of the District Director 

under the provisions of 8 CFR 244.2. 

ORDER: It is ordered that the appeal be and it is hereby dismissed. 

It is further ordered that, " pursuant to the special inquiry 

officer's order, the respondent 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 respondent shall be deported as provided in the special 

inquiry officer's order. 

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