GALLARES
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
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
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
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
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
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 problems, we shall take this case on certification under
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 (BIA, 1965). Indeed, from the notice of appeal filed by present counsel, it does not appear that deportability is seriously questioned, except in relation to 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 case.” 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-yet-unascertained “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 (BIA, 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
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 order: 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 officer‘s order.