dent and, in conjunction therewith, requested classification as a refugee. In support of her application for refugee status, the alien has submitted an affidavit wherein she states that she last entered the United States on April 2, 1968 to visit friends; that while she was here, the Soviet Union invaded Czechoslovakia on August 20, 1968 and she was advised by her father not to return home; that her parents have always been anti-communist and her father has steadfastly refused to join the Communist Party; that he has also evidenced anti-Soviet sentiments, and, as a result, has been attacked in the Czechoslovak press and transferred from his job in Prague to a border city; that she has not heeded an order from the Czechoslovak Embassy in the United States to return to Czechoslovakia by December 31, 1969; that she feels she would be persecuted if she went back, and would be prevented from continuing her education and securing employment; that her sister and her husband, who also came to the United States on a visit, are likewise afraid to return to Czechoslovakia and have applied for permanent residence. Section 203 (a) (7) of the Act provides in pertinent part as follows: Conditional entries shall next be made available *** to aliens who satisfy an Immigration and Naturalization Service officer *** (A) that (i) because of persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or area, or (II) from any country within the general area of the Middle East, and (ii) are unable or unwilling to return to such country or area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional entry is made.... (Emphasis supplied) The principal issue to be resolved in the matter at hand is whether this applicant can be regarded as having "fled" from a Communist or Communist-dominated country within the contemplation of the statute because of persecution or fear of persecution on account of race, religion or political opinion. At the time she last departed from her country, the events which militated against her return had not yet transpired. While she was in the United States, Russian troops invaded Czechslovakia on August 20 and 21, 1968 and the Government of that country was replaced with a Soviet-imposed regime. Several thousand Czechoslovak nationals escaped into Austria and Germany where they sought classification as refugees. As a consequence for the first time since section 203 (a) (7) became effective, the number of refugees abroad who sought entry into the United States under this sec tion exceeded the number of visas available (1969 Annual Report of the Immigration and Naturalization Service, Page 11). In addition to the thousands of Czechoslovakians who fled the Soviet invasion, there were countless others who were outside the country at the time and, because of the change in government, refused to return. It would be extremely narrow and inequitable to view those nationals who physically fled from Czechoslovakia because of political opinion as refugees and to withhold such status. from those who remained out of the country for the very same reason. According to "Webster's New International Dictionary", Third Edition, the term "fled" may reasonably be construed to include one who has avoided, abandoned or forsaken a danger or evil. We believe that this broad construction is consonant with the remedial nature and purpose of section 203 (a) (7) of the Act in its use of the term. Within the context of such definition, it is immaterial whether the circumstances which caused an alien to become a refugee occurred before or after departure from the country or area. In the instant case, we find it has been satisfactorily established that the applicant abandoned her residence in Czechoslovakia because of fear of persecution on account of her political beliefs and is unwilling to return there for the same reasion. It is concluded, therefore, that she has constructively fled from a Communist country within the contemplation of the statute and meets the requirements for classification as a refugee under section 203 (a) (7) of the Act. The alien has been continuously physically present in the United States for at least two years prior to her application for adjustment of status and an immigrant visa number is immediately available to her under the proviso to section 203 (a) (7) of the Act. Inasmuch as she qualifies for adjustment in all other respects, the decision of the District Director will be affirmed. It is ordered that the decision of the District Director approving the applications for classification as a refugee under section 203 (a) (7) and for adjustment of status to permanent resident under section 245 of the Immigration and Nationality Act, as amended, be and same is hereby affirmed. MATTER OF LI In Deportation Proceedings A-18431665 Decided by Board November 19, 1970 Motion to reopen deportation proceedings is not granted merely because a third preference visa petition on behalf of respondent was approved subsequent to the entry of a final order of deportation. ON BEHALF OF RESPONDENT: David C. Marcus, Esquire 215 West Fifth Street Respondent moves to reopen deportation proceedings. The motion will be denied. The record before us reflects the following uncontroverted facts: On September 4, 1969, this Board entered an order dismissing respondent's appeal from an order of a special inquiry officer finding her deportable as an overstayed visitor and granting her a period of ten days within which to depart voluntarily from the United States. In our order, in accordance with Matter of Villegas-Aguirre, Interim Decision No. 1940 (BIA, 1969), we authorized voluntary departure within ten days from the date of our decision. No further extension of the voluntary departure time was granted and on respondent's failure to depart the alternate order of deportation became effective. Thereafter, on January 15, 1970, the District Director approved a third preference visa petition filed in respondent's behalf. Called in to surrender for deportation, respondent on March 16, 1970 filed a petition under section 106 (a) of the Immigration and Nationality Act in the United States Court of Appeals for the Ninth Circuit, seeking review of our order of September 4, 1969. The petition was dismissed as untimely, rehearing was denied, and on October 26, 1970 respondent's certiorari petition was denied by the Supreme Court, Li v. Rosenberg, No. 5523, October Term, 1970. The theory of the motion now before us is that the District Director's approval of the respondent's visa petition somehow nullified the outstanding order for her 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 a permanent resident under section 245 of the Act without having to leave the United States. We reject that notion. The adjudication of third preference visa petitions and of deportability are entirely separate functions which are committed to entirely distinct tribunals. Such visa petitions are adjudicated by District Directors and are reviewable on appeal to the Service's Regional Commissioners, 8 CFR 103.1 (e) (2). Deportability and applications for voluntary departure are adjudicated by special inquiry officers in proceedings under section 242 (b) of the Act, and such adjudications are reviewable on appeal to this Board, 8 CFR 3.1 (b) (2). The motion to reopen rests on the erroneous premise that approval of the visa petition "entitled [respondent] to adjust status in the United States to that of a lawful permanent resident" (Motion to reopen, p. 5). Approval of the visa petition had no such effect. Visa petition approval merely paves the way for later eligibility to permanent residence at such time as a quota number becomes available. If the beneficiary of the approved visa petition is permitted to remain in the United States until his turn is reached on the waiting list, visa availability is merely one of the eligibility requirements of section 245 adjustment that he is thereby enabled to meet. There are other requirements, and even if he meets them all, adjustment of status to permanent residence does not automatically follow; administrative discretion must still be favorably exercised If the beneficiary is outside the United States when the quota number becomes available, he can then apply to a United States consul for the issuance of an immigrant visa upon which to seek admission for permanent residence. In either event, approval of a visa petition is merely a starting point on the road to permanent residence. In itself, it confers no vested rights to permanent residence. The court cases cited by respondent all dealt with the question of the courts' jurisdiction to review various types of administrative determinations under section 106 (a) of the Act. None pur 1 The third preference portion of the Philippine quota is now available only to aliens with a priority date of September 15, 1968, according to the latest State Department Visa Office Bulletin. ports to hold that approval of a visa petition has the effect of nullifying an outstanding deportation order. Although it may be more convenient for an alien to pursue such collateral remedies while still in the United States, there is nothing in the law which requires that deportation proceedings be withheld or that execution of a deportation order be stayed during the pendency of such collateral proceedings. See Siu Fung Luk v. Rosenberg, 409 F.2d 555, 559 (9 Cir., 1969), cert. denied 396 U.S. 801; Manantan v. INS, 425 F.2d 693 (7 Cir., 1970); Wan Cheng Shek v. Esperdy, 304 F. Supp. 1086 (S.D. N.Y., 1969). While it may be true that deportation of the respondent will render her ineligible to receive a visa under section 212(a) (17) of the Act unless she first receives permission to reapply, that is a condition which confronts all deportees. The mere fact that she has previously spurned the opportunity to depart voluntarily without the entry of a deportation order and that she has unsuccessfully litigated our prior order does not require that the privilege of voluntary departure must once more be made available to her. See Fan Wan Keung v. INS, 434 F.2d 301 (2 Cir., October 19, 1970). ORDER: The motion is denied. |