Interim Decision #2185 

MATTER OP ALA.R.A.S 

In Deportation Proceedings 

A-19727506 

A-19717874 

Decided by Board February 23, 1973' 

Approval of a third preference visa petition on behalf of a nonimmigrant alien 

illegally in the United States does not restore the alien to a valid nonimmigrant status nor does it directly affect the alien's right to remain in the 

United States before the visa at least becomes available. The withholding or 

institution of deportation proceedings against such alien is a matter solely 

within the province of the District Director (Matter of Geronimo, 13 I. & N. 

npr. 6g0). 

CHARGE: 

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

(both rcopondento) 

ON BEHALF OF RESPONDENTS: Samuel D. Myers, Esquire 

134 North LaSalle Street 

Chicago, Illinois 60602 

(Brief filed) 

Of counsel: 

Irving I. Freedman, Esquire 

This case relates to a husband and wife, natives and citizens of 

the Philippines, who were admitted into the United States as 

nonimmigrant visitors for pleasure. They remained longer than 

authorized by the Service. At a deportation hearing held on May 

18, 1972 the special inquiry officer found them deportable as 

charged. Thereafter, on July 17, 1972, further hearing was held 

and the special inquiry officer granted the respondents' application for voluntary departure within a period of 30 days in lieu of 

deportation with an alternate order of deportation to the Philippines. The finding of deportability was established by evidence 

which is clear, convincing and unequivocal. 

The record reflects that on December 30, 1970 the female 

respondent's third preference visa petition was approved. The 

male respondent has no approved visa petition. Pursuant to the 

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Interim Decision #2185 

United States Immigration Service policy a decision was made not 

to grant the respondents extended voluntary departure, and the 

respondents were ordered to appear for their deportation hearing. 

Prior thereto the respondents filed a complaint in the United 

States District Court, Northern District of Illinois, Eastern Division seeking (1) to cancel the scheduled deportation proceedings 

and (2) a grant of indefinite voluntary departure until such time as 

they are eligible to apply for permanent resident status in accordance with the Service's internal Operations Instrutions. 

On appeal, counsel for respondents contends, in effect, that the 

District Director's approval of the female respondent's visa petition somehow suspended the grounds for deportation, so that she 

is permitted to remain here indefinitely until such time as her 

turn is reached on the quota list, after which she will be eligible to 

apply for adjustment of her status to that of permanent resident 

under section 245 of the Act without having to leave the United 

States. Counsel further contends that because the decision to 

institute proceedings against the female respondent was contrary 

to a Service policy set forth in Service Operations Instructions, 

due process of law requires that she be confronted with the reason 

why she was treated differently and the evidence substantiating 

that reason, and given an opportunity to refute such evidence. We 

reject counsel's contentions. 

The female respondent was admitted as a nonimmigrant until 

January 6, 1971, received no extension beyond that date, and has 

remained longer than permitted. The approval thereafter of her 

visa petition and its current validity did riot restore her to a valid 

nonimmigrant status. The approval of a visa petition merely paves 

the way for ultimate issuance of an immigrant visa. It does not 

directly affect the alien's right to enter or remain in the United 

States before the visa itself is issued or at least becomes available. 

Indeed, most beneficiaries of visa petitions are aliens residing 

abroad, who gain no residence rights here by the mere approval of 

the petition. Respondent gained no added rights by the circumstance that she happened to be in the United States, rather than 

abroad, when her visa petition was approved. 

All of counsel's contentions made on appeal challenge the 

District Director's action in starting the deportation proceedings. 

Obviously, no useful purpose would be served in making a record 

on this issue before the special inquiry officer unless he has power 

to review the District Director's action in this regard. We adhere 

to the view expressed in Matter of Geroninto, 13 I. & N. Dec. 680 

(BIA, 1971) that ". . . it is within the District Director's prosecutive discretion whether to institute deportation proceedings 

against a deportable alien or temporarily to withhold such pro288 
Interim Decision #2185 

ceedings. Where such proceedings have begun, it is not the 

province of the special inquiry officer (or of this Board on appeal) 

to review the wisdom of the District Director's action in starting 

the proceedings, but to determine whether the deportation charge 

is sustained by the requisite evidence.. . ." 

We have consistently held that whether to proceed against a 

deportable alien or to withhold institution of deportation proceedings while he pursues a collateral remedy is completely within the 

prosecutive discretion of the District, Director, which neither the 

special inquiry officer nor this Board may review, Matter of 

Gercmimo, supra. The courts have endorsed this view Manantan v. 

INS, 425 F.2d 693 (C.A. 7, 1970); Bowes v. INS, 443 F.2d 30 (C.A. 9, 

1971); Spata v. INS, 422 F.2d 1013 (2 Cir., 1971), cert. denied 404 

U.S. 875. See also Lumarque v. INS, (C.A. 7, No. 71-1886, June 12, 

1972), in which the court, in commenting on the applicable Service 

Operations Instructions, said in pertinent part as follows: ". . . 

The operating instruction clearly contemplates a discretionary use 

of the voluntary departure procedure. A grace normally afforded 

does not become an enforceable right merely because it is described as a normal practice in an internal operating instruction." 

Accordingly, the following order will be entered. 

ORDER: The appeals are hereby dismissed. 

It is further ordered that, pursuant to the special inquiry 

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

inquiry officer's order. 

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