Interim Decision #2177 

MATTER OF GALLARES 

In Deportation Proceedings 

A-19662566 

Decided by Board December 29, 1972 

The beneficiary of an approved third preference visa petition who, pending 

availability of a visa number, was permitted to remain in the United States 

until further notice upon the condition of retention of third preference status, 

received, at most, an open-ended voluntary departure opportunity and not an 

irrevocable right or privilege to remain here indefinitely. Respondent, through 

his subsequent marriage to such a third preference beneficiary, could succeed 

derivately to no greater rights; he remains deportable under sections 241(a)(2) 

and (9) of the Immigration and Nationality Act despite his marriage.* 

CHARGES: 

Order: Act of 1952—Section 241(aX9) [ 8 U.S.C. 1251(a)(9)]—Failed to comply 

with the conditions of nonimmigrant status—student. 

Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Remained longer 

than permitted as nonimmigrant student. 

ON BEHALF OF RESPONDENT: 

Dan P. Danilov, Esquire 

3828 Seattle-First National 

Bank Building 

Seattle, Washington 98104 

ON BEHALF OF SERVICE: 

William L. Pattillo 

District Director 

This matter is before the Board on what appears to be an 

untimely appeal from an order of a special inquiry officer dated 

September 21, 1972, finding the respondent deportable and granting him until October 22, 1972 to depart voluntarily. Present 

counsel for respondent has also filed a motion to reopen and 

reconsider. To avoid any question as to our jurisdiction to consider 

respondent's case on the merits, we shall take the case on certification under 8 CFR 3.1(c) and enter an appropriate order. 

Respondent is a 35-year-old male alien, native and citizen of the 

Philippines, who was admitted to the United States on or about 

June 3, 1971 as a nonimmigrant visitor for business. His nonimmigrant status was thereafter on July 15, 1971 changed to that of a 

* See also, Matter of Merced, Interim Decision No. 2273 (BIA, 1974). 

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Interim Decision #2177 

student to permit him to. attend the Loyola University of the 

South at New Orleans and he was authorized to remain here in 

that status until July 15, 1972. On January 17, 1972, the Seivice's 

District Director at Portland, Oregon received from respondent an 

application for permission to transfer to the University of Portland. The application recited that he had last attended Loyola 

University on'December 20, 1971 and was then attending Portland 

University in evening classes 12 hours a week. On January 28, 

1972, respondent filed an application for adjustment of status to 

that of permanent resident under section 245 of the Immigration 

and Nationality Act. On April 14, 1972 the District Director denied 

respondent's section 245 application and, concluding that he had 

violated his student status, gave him until May 14, 1972 to depart 

voluntarily without the institution of deportation proceedings. He 

failed to depart and an order to show cause in deportation 

proceedings was issued, charging that he was deportable under 

section 241(a)(9) of the Act for having failed to comply with the 

conditions of his student status by accepting unauthorized employment and by transferring to the University of Portland without 

Service permission. At the deportation hearing, an additional 

charge was lodged under section 241(aX2) of the Act, charging that 

respondent had remained longer than permitted after his section 

245 application had been denied and he had been given until May 

14, 1972 to depart. 

The deportation hearing was held at Portland, Oregon and 

respondent was there represented by Gerald H. Robinson, Esquire, 

an experienced immigration lawyer. Respondent renewed his section 245 application but later withdrew it when he was unable to 

establish the requisite visa eligibility. On July 18, 1972 the District 

Director denied respondent's application for a one-year extension 

of his temporary stay. At the deportation hearing respondent 

requested reinstatement to his student status. 

On September 21, 1972 the special inquiry officer entered his 

order. He concluded that he lacked power to reinstate respondent 

to his student status. The unauthorized employment charge was 

found not sustained by the evidence. The special inquiry officer 

concluded, however, that both the section 241(x)(9) charge in the 

order to show cause and the lodged section 241(a)(2) charge were 

sustained, finding that respondent had violated the terms of his 

student status by his unauthorized transfer to the University of 

Portland and had abandoned his student status when he filed his 

section 245 application. The special inquiry officer granted voluntary departure to October 22, 1972, with provision for an alternate 

order of deportation to the Philippines if respondent failed to 

depart. A copy of the special inquiry officer's order was mailed to 

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Interim Decision #2177 

respondent's attorney, Mr. Robinson. No copy was sent to the 

respondent. On October 16, 1972, a form letter was mailed to 

respondent, notifying him that he must depart by October 22, 1972. 

On October 19, 1972 the District Director extended the departure 

time to October 29, 1972. 

In the meantime, respondent retained his present attorney, 

whose office is in Seattle, Washington. On October 25, 1972 counsel 

filed with the District Director at . Portland a notice of, appeal to 

this Board from the special inquiry officer's decision and requested 

the District Director not to execute the alternate order of deportation pending action by this Board on the appeaL The District 

Director issued a warrant of deportation and directed respondent 

to surrender for deportation on November 9, 1972. On November 2, 

1972, counsel sent us a copy of a motion he had filed for reopening 

and reconsideration. The motion, which is supported by affidavit, 

recites that on September 14, 1972 respondent married Charito C. 

Pedro, a native of the Philippines and a citizen of Canada, who is 

the beneficiary of a third preference visa petition approved March 

21, 1972. In the letter of that date notifying Miss Pedro (then 

unmarried) of the approval, the District Director advised her that 

as an immigrant visa was not yet available and she was therefore 

ineligible to apply for section 245 adjustment, she was permitted to 

remain in the United States until further notice, conditioned upon 

her retention of her third preference status. The notice further 

stated pro forma that the permission granted to remain in the 

United States applies also to her spouse and children, if any. 

The District Director opposes the appeal as untimely, citing 8 

CFR 242.21. He also contends that service of the special inquiry 

officer's order on Mr. Robinson, respondent's then attorney, without also serving respondent himself is sufficient to comply with 

the requirements of 8 CFR 292.5. In support of his contention that 

the notice of appeal should be considered as filed timely, counsel 

for respondent asserts that it has been the unvarying practice of 

the Service in the Portland District to serve not only the attorney 

but also the alien. This contention is supported by the affidavit of 

Mr. Robinson, respondent's former attorney. 

Both in his notice of appeal and in his motion papers, counsel 

takes the position that respondent's status has been altered by his 

marriage to Miss Pedro. He argues, in effect, that as her spouse 

respondent is the beneficiary of the March 21, 1972 grant of 

permission to her spouse to remain here with her. In order that we 

might give mature consideration to this claim, on November 7, 

1972 we stayed deportation pending further order of this Board. 

The record before us does not contain a transcript of the hearing 

before the special inquiry officer and we have been informed that 

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Interim Decision #2177 

because of mechanical difficulty no transcript can be made. We 

have concluded that we can decide the merits of the case without 

it. 

We need not ascertain what in fact was the unvarying practice 

in the Portland District, nor need we rule on the timeliness of the 

attempted appeal. In order that we may do justice to the respondent without regard to possibly difficult jurisdictional problem; we 

shall take this case on certification under 8 CFR 3.1(c). 

From the undisputed facts of record,. we are satisfied that 

respondent's deportability has been established by clear, convincing and unequivocal evidence. We agree with the special inquiry 

officer that he lacked power to reinstate respondent to his student 

status, Matter of Sourbis, 11 I. & N. Dec. 335 (B IA, 1965). Indeed, 

from the notice of appeal filed by present counsel, it does not 

appear that deportability is seriously questioned, except in relation t9 the factors raised in the motion to reopen, which we discuss 

next. 

The motion to reopen asserts, in substance, that respondent's 

marriage on September 21, 1972 to Charito C. Pedro "has a 

substantial effect upon the Decision in this ease." We think not. 

We need not determine whether, by his marriage to Miss Pedro, 

respondent became automatically endowed with whatever rights 

or privileges, if any, were granted to her unnamed and as-yetunascertained "spouse" by the Service's letter of March 21, 1972. 

Assuming, arguendo, that on his marriage respondent succeeded 

to those rights and privileges, they could not in any event exceed 

those conferred on the then Miss Pedro herself. What she received 

was, at most, an open-ended voluntary departure opportunity and 

not an irrevocable right or privilege to remain here indefinitely. 

As a nonimmigrant who had sought to become a permanent 

resident under section 245, Miss Pedro had ceased to maintain her 

valid nonimmigrant status and had become deportable. In approving her visa petition, the District Director informed her that she 

would be permitted to remain in the United States until further 

notice, pending availability of a visa number. In doing this, the 

District Director conferred on her no 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 special inquiry officers may review, Matter of 

Geronimo, 13 I. & N. Dec. 680 (B IA, 1971). Approval of a visa 

petition conveys no vested right to remain, Matter of Li, 13 I. & N. 

Dec. 629 (BIA, 1970). The courts have endorsed our view that a 

Service policy of lenity with respect to beneficiaries of approved 

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Interim Decision #2177 

visa petitions confers no immutable rights generally and certainly 

no enforceable right to remain here permanently, Armstrong v. 

INS, 445 F.2d 1395 (C.A. 9, 1971); Vassiliou v. District Director, 461 

F2d 1193 (CA. 9,1972); Discava v. INS, 339 F: Supp. 1034 (N.D. Ill., 

1972). In net effect, all that Miss Pedro obtained from the District 

Director's letter of March 21, 1972 was the privilege, as a deportable alien, of departing voluntarily without the institution of deportation proceedings, with no terminal date for departure fixed as 

yet. In marrying her thereafter,. respondent could succeed derivatively to no greater rights. 

The special inquiry officer granted respondent the privilege of 

voluntary departure, the maximum form of discretionary relief for 

which he was then or is now eligible. If we restore that privilege 'to 

him now, he can have no cause for complaint. We shall leave it to 

the District Director to fix the departure time, taking into account 

the situation of the respondent's wife and the Service's enforcement policies generally pertinent to such a situation. 

ORDER: The decision of the special inquiry officer is affirmed, 

insofar as concerns the adjudication of respondent's deportability. 

Further ordery The outstanding order and warrant of deportation are withdrawn, and the respondent is permitted to depart 

voluntarily from the United States within such time and under 

such conditions as may be fixed by the District Director; and upon 

failure -of the respondent so to depart when and as directed, the 

respondent shall be • deported as provided in the special inquiry 

offices. order, 

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