JUDGMENT ORDER and MEMORANDUM OPINION
Plаintiff seeks review of an administrative ruling and order of voluntary departure of the Immigration and Naturalization Service оf the Department of Justice. Before the court is defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, defendant’s motion tо dismiss, which was accompanied by the complete administrative record, shall be treated by the court as a motion for summary judgment under Rule 56.
Plaintiff is a citizen of the Philippines who entered the United States on August 2, 1970 as a non-immigrant visitor for pleasure for a period not to exceed thirty days. Thereafter, she sought and received an extension of her visitor’s visa to March 5, 1971. On November 13, 1970, plaintiff filed a petition for a third preference visa pursuant to 8 U.S.C. § 1153(a) (3). This petition was approved on January 29, 1971, but because a proper visa number has not been available, she has not been рermitted to apply for an adjustment of her visitor’s status to that of permanent resident. However, plaintiff was not granted permission to stay in the United
After full considеration of all papers filed in this matter, the court finds that the only issue before the court is whether defendant abused its discretion when it refused to permit the plaintiff to remain in the United States after plaintiff’s non-immigrant visitor visa expired on Marсh 5, 1971, in view of the fact that plaintiff’s petition for a third preference visa was approved on January 29, 1971.
Plaintiff cites no statutory authority, or ease authority to support her contention that she has a right to remain in the United States until а third preference visa number is available, or that the approval of plaintiff’s third preference petitiоn supersedes the order extending her visitor’s visa to only March 5, 1971. Plaintiff is presently in the United States as a non-immigrant visitor. That status expired as of March 5, 1971 and was not extended. She has been given two opportunities to depart voluntarily in order to avoid deportation, but she has failed to depart voluntarily. In principle, pursuant to the approval of hеr petition for third preference status, plaintiff will be eligible to enter the United States as an immigrant when an appropriate visa number becomes available. Until such time as a visa number becomes available, she must wait somewhere other than the United States since her permission to remain in the United States as a visitor has expired. As Judge Perry has stated in the closely related case:
The third preference visa granted to the plaintiff was a matter of privilege and did not bestow upon her a right to remain in this country when the authorized period of her visit had expired and the quota was exhausted. Gerónimo v. Immigration and Naturalization Service, 71 C 2134 at p. 8. (N.D.Ill. January 18, 1972)
The correctness of the order of the Special Inquiry Officer as affirmed by the Board of Immigration Appeals is the only question before this court. The findings of faсt by the Special Inquiry Officer have not been challenged here. Plaintiff argues that she should have been put in a special class of aliens who are permitted to remain in this country until the desired visas become available, and thаt the failure to include her in this special class constitutes an abuse of administrative discretion. As indicated abovе, plaintiff directs us to no statutory or case authority for the creation of such a class. Plaintiff argues, and defendant does not deny, that there is an informal administrative policy by which deportation orders for certain aliens are stayed until an appropriate visa number becomes available. Defendant argues that these orders arе granted only on a case by case basis, and are exclusively a matter within its administrative discretion.
This court feels bound by the authority as expressed in Spata v. Immigration and Naturalization Service,
The equal protection clause of the 14th Amendmеnt is applicable only to the states. Plaintiff has been afforded procedural due process as required by the 5th Amendment. The court finds that the contention that plaintiff was treated unfairly and in violation of due process of law, аs guaranteed by the 5th Amendment is without merit. The court finds that the determination of the Immigration and Naturalization Service in this case is supported by the record and constitutes a proper exercise of administrative discretion.
Defendant’s motion for summary judgment is granted. Case dismissed.