Interim Decision #2930 

MATTER OF QUINTERO 

In Deportation Proceedings 

A-24229344 • 

Decided by Board November 16, 1982 • 

(1) Deferred action status, granted pursuant to Operations Fnstructions 103.1(a)(1)(ii), is 

a matter of the District Director's prosecutorial discretion and, therefore, neither the 

immigration judge nor the Board may grant such status or review a decision of the District Director to deny it. 

(2) Deferred action status may be requested at any stage in deportation proceedings and, 

therefore, it was not error for the immigration judge to refuee to adjourn the hearing 

for an alien to pursue that relief. 

(3) The immigration judge's authority to grant voluntary departure does not confer on 

him the power to accord an alien extended voluntary departure -since such authority is 

within the exclusive jurisdiction of the District Director, 

CHARGE: 

Order: Act of 1952—See. 241(aX1) [8 U.S.C. 1251(a)(1)]—Excludable at entry uncle; 

section 212(a)(20), U.S.C. 1182(a)(20)I—No valid immigrant 

visa 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Byron B. Park, Esquire Ronald E. Le Fevre 

681 Market Street, Suite 1031 General Attorney 

San Frasteisco, California 94105 

Michael Maggio, Esquire Gerald Hurwitz 

1800 Belmont Road, N.W. Appellate Trial 

Washington, D.C. 20009 Attorney 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In a decision dated October 22, 1981, the immigration judge found the 

respondent deportable on his own admissions and granted hini voluntary departure on or before April 1, 1982. The respondent has appealed 

from that decision. The appeal will be dismissed. 

The respondent is a native and citizen of Mexico who last entered the 

United States on April 5, 1977. The record reflects that his wife is a 

lawful permanent resident whose visa petition has been approved to 

• accord the respondent second-preference classification. They have two 

children, one of whom is a United States citizen. 

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At his deportation hearing the respondent made a motion to adjourn 

the proceedings in order to allow the District Director to act on his 

request for termination of the proceedings or for deferred action status 

pursuant to Operations Instruction 103.1(a)(1)(10. 1He argued that the 

District Director should have granted him permission to remain until a 

visaimmbir was available because of the hardship his deportation would 

cause his family. He further contended that the immigration judge should 

grant him deferred action status or indefinite voluntary departure if the 

District Director declined to accord him relief. The immigration judge 

denied the respondent's motion to adjourn and found that he was without jurisdiction to grant deferred action status. 

The respondent has reiterated his arguments on appeal and further 

contends that the immigration judge erred in refusing to adjourn the 

hearing so that the District Director could address his request for 

deferred action status. We find his contentions to be without merit. 

As the Operations Instruction indicates, deferred action status is an 

informal administrative stay of deportation which is granted only where 

the District Director, with the Regional Commissioner's approval, finds 

it to be warranted. See Wan Chung Wen v. Ferro, 543 F. Supp. 1016 

(W.D.N.T. 1982). Such permission to remain in this country indefinitely 

is bestSwed as a matter of .prosecutorial grace and accords no rights to 

permanent residence. See Soon Bok Yoon v. INS, 538 Iv.= 121115 Cir. 

1976); Zocharakis v. Ham*" 617 F.Supp. 1026 (S.D. Fla. 1981); 

Diseaga T. INS, 339 F. Supp. 1034 (N.D. Ill. 1972); Matter of Lennon, 

15 I&N Dec. 9 (BIA 1974), rev'd on other grounds, Lennon v. INS, 527 

F.2d 187 (2 Cir. 1975); see also Manantan v. INS, 425 F.2d 693 (7 Cir. 

1970); Matter of Merced, 14 I&N Dec. 644 (BIA 1974); Matter of Gallares, 

14 I&N Dee. 250 (BIA 1972); but see Nichglas v. INS, 590 F.2d 802 (9 

Cir. 1979); Petition of Guerrero-Morat6s,..612 F.Supp 1328 (D. Mimi. 

1981). 2 

Operations Instruction 103.1(a)(1/00 provides in pertinent part: 

• The district director may, in his discretion, recommend consideration of deferred 

action, an act of administrative choice to give some cases lower priority and in no way an 

entitlement, in appropriate cases. (Revised) 

The deferred action category recognizes that the Service has limited enforcement 

resources and that every attempt should lie made 'administratively to utilize these 

resources in a manner which will achieve the greatest impact under the immigration 

laws. . . . 

. . . . 

If the district director oeternunes that a recommendation for deferred action should 

be made, it shall be made to the regional commissioner concerned on Form G-3I2, which 

shall be signed personally by the district director, and the basis for his recommendation 

,shall be set tom therein specifically. .. 

2The Operations Instruction was revised subseqUent to the decisions in Nicholas v. 

INS and Petition of Guerrero-Morales, supra. See Wan Chung Wen v. Ferro, supra. 

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Interim Decision #2930 

Authority for a grant of deferred action status appears only in the 

Operations Instructions. It is mentioned nowhere in the statute or the 

regulations and is simply the result of an administrative policy to give 

low priority to the enforcement of the immigration laws in certain cases. 3 

See Zacharakis v. Howerton, supra. Consequently, the prosecutorial 

discretion exercised in granting deferred action status is committed 

exclusively to the Service enforcement officials. See Soon Bok Yoon v. 

INS, supra; Vergel v. INS, 536 F.2d 755 (8 Cir. 1976); Zacharakis v. 

Howerton, supra; Spata v. INS, 442 F.2d 1013 (2 Cir.), cert. denied, 404 

U.S. 857 (1971); Discaya v. INS, supra. Inasmuch as deferred action 

status is a function of the District Director's prosecutorial authority, 

neither the immigration judge nor the Board may grant such status or 

review a decision of the District Director to deny it. See Lopez-Telles v. 

INS, 564 F.2d 1302 (9 Cir. 1977); Matter of Merced, supra; Matter of 

Gallares, supra; Matter of Geronimo, 13 LW Dec. 680 (BIA 1971). 

Furthermore, since the respondent can request deferred action status 

at any stage in the proceedings, the immigration judge did not err in 

refusing to adjourn the hearing to allow him to pursue that relief. See 

lA C. Gordon and H. Rosenfield, Immigration Law and Procedure 

section 5.3e(7)(1982); Manantan v. INS, supra. Likewise, the immigration judge's refusal to continue the hearing until a visa number was 

available was proper because he may neither terminate nor indefinitely 

adjourn the proceedings in order to delay an alien's deportation. See 

Bowes v. INS, 442 F.2d 20 (9 Cir. 1971). Once deportation proceedings 

have been initiated by the District Director, the immigration judge may 

not review the wisdom of the District Director's action, but must execute his duty to determine whether the deportation charge is sustained 

by the requisite evidence in an expeditious manner. See Lopez-Telles v. 

INS, supra; Matter of Geron.itn,o, supra. In any cane, the fact that the 

respondent has an apprdved visa petition does not entitle him to delay 

the completion of deportation proceedings pending availability of a visa 

number. See Armstrong v. INS, 445 F.2d 1395 (9 Cir. 1971); Manantan 

v. INS, supra; Matter of Merced, supra; Matter of Agarwat, 13 I&N 

Dec. 171 (BIA 1969). We cowhide therefore that the immigration judge 

. did not abuse his disdretion in denying the respondent's motion to 

adjourn. 

The respondent has argued that the immigration judge's authority to 

grant voluntary departure confers on him the power to accord extended 

voluntary departure, which he contends is equivalent to deferred action 

status. Unlike extended voluntary departure which allows an alien to 

remain in this country indefinitely, voluntary departure is only granted 

The factors considered in determining whether deterred action status should be granted 

are set forth in the Operations Instruction. 

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Interim Decision #2930 

to aliens who have established that they are willing and have the immediate means to depart promptly from the United States. See 8 C. F. R. 

244.1. As the respondent notes, the immigration judge is not limited as 

to the period of time he may grant for voluntary departure. See 

Hernandez-Rivera v. INS, 630 F.2d 1352 (9 Cir. 1980); Matter of 

Chouliaris, 16 I&N Dec. 168 (BIA 1977). However, it is well established that the immigration judge may not grant voluntary departure 

for an indefinite period of time. See Matter of Anaya, 14 I&N Dec. 488 

(BIA 1973), affd sub nom. Anaya-Perehez v. INS, 500 F.2d 574 (5 Cir. 

1974); Matter of Chamizo, 13 I&N Dec. 435 (BIA 1969). Furthermore, 

jurisdiction to grant extended voluntary departure, as well as deferred 

action status, lies solely with the District Director. See 8 C.F.R. 244.2; 

Manantan v. INS, supra, Matter of Anaya, supra. The respondent's 

argument is therefore without merit. • 

Finally, we conclude that the immigration judge did not abuie his 

discretion in declining to grant the respondent 2 years for voluntary 

departure as requested. The usual period of time allowed for voluntary 

departure is 30 days. See Matter of M-, 4 UN Dec. 623 (BIA 1952). 

Taking into consideration the facts that the respondent has a lawful 

permanent resident wife and a United States citizen child and is the 

beneficiary of an approved visa petition, we find that the period of over 

5 months granted by the immigration judge was more than adequate. 

Accordingly, the appeal will be dismissed. 

ORDER The appeal is dismissed. 

FURTHER ORDER: Pursuant to the immigration judge's order 

and in accordance with our decision in Matter of Choutiaris, supra, the 

respondent is permitted to depart from the United States voluntarily 

within 30 clays 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 his 

failure so to depart, the respondent shall be deported as provided in the 

immigration judge's order. 

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