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 

siemiin in the United States until further notice as the beneficiary of an 

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 respond644 
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ents to remain in the United States was revoked.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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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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