Matter of Quintero
| Decision Date | 16 November 1982 |
| Docket Number | Interim Decision Number 2930,A-24229344 |
| Citation | 18 I&N Dec. 348 |
| Parties | MATTER OF QUINTERO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 22, 1981, the immigration judge found the respondent deportable on his own admissions and granted him 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.
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)(ii).1 He argued that the District Director should have granted him permission to remain until a visa number 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.Y. 1982). Such permission to remain in this country indefinitely is bestowed as a matter of prosecutorial grace and accords no rights to permanent residence. See Soon Bok Yoon v. INS, 538 F.2d 1211 (5 Cir. 1976); Zacharakis v. Howerton, 517 F.Supp. 1026 (S.D. Fla. 1981); Discaya v. 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 Dec. 250 (BIA 1972); but see Nicholas v. INS, 590 F.2d 802 (9 Cir. 1979); Petition of Guerrero-Morales, 512 F.Supp 1328 (D. Minn. 1981).2
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 I&N 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 1A 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, 443 F.2d 30 (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 Geronimo, supra. In any case, the fact that the respondent has an approved 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 Agarwal, 13 I&N Dec. 171 (BIA 1969). We conclude therefore that the immigration judge did not abuse his discretion 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 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...
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