Nasan v. Immigration & Naturalization Serv.

• Citation: 449 F. Supp. 244
• Decision Date: 24 March 1978
• Docket Number: No. 77 C 3275.,77 C 3275.
• Parties: Jamil Abdallah Masoud NASAN, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

449 F. Supp. 244

Jamil Abdallah Masoud NASAN, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants.

No. 77 C 3275.

United States District Court, N. D. Illinois, E. D.

March 24, 1978.

Minsky, Lichtenstein & Feiertag, P. C., Chicago, Ill., for plaintiff.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM

LEIGHTON, District Judge.

Jamil Abdallah Masoud Nasan, an Israeli citizen, files this suit seeking review of a decision made by the Department of Immigration and Naturalization denying him adjustment in his status from that of a non-immigrant visitor for pleasure to that of a permanent resident pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255. Plaintiff seeks an order declaring that he is entitled to adjustment of status to that of a permanent resident, and an injunction prohibiting defendants, the Immigration and Naturalization Service and David V. Vandersall, the District Director of the Immigration and Naturalization Service, from taking any action to deport him pending resolution of this dispute. The cause is before the court on defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Rule 12, Fed.R.Civ.P. or, in the alternative, for summary judgment pursuant to Rule 56, Fed.R.Civ.P.

I. THE MOTION TO DISMISS

The issue raised by this motion is whether this court has jurisdiction to review a discretionary denial of adjustment in status pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, in the absence of an ancillary deportation order, under any of the following provisions invoked by plaintiff to form a jurisdictional basis for this cause: the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq.; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202; Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329; or the federal question provision of 28 U.S.C. § 1331. With minor concessions, defendants contend that none of the provisions support jurisdiction for this cause and plaintiff contends that all of these provisions support jurisdiction. From the outset the following propositions are clear to this court. First, the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. is not an independent grant of subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Second, the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, is not an affirmative grant of subject matter jurisdiction. Stuyvesant Insurance Co. v. Dist. Dir., I.N.S., U.S.D. of Jus., 407 F.Supp. 1200, 1203 (N.D. Ill.1975). Third, the regulatory framework and statutory provisions of the Immigration and Nationality Act provide a method for review of a discretionary denial of adjustment in status. The regulations provide that

no appeal shall lie from the denial of an application for adjustment in status by the district director but such denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter. 8 C.F.R. § 245.2(a)(4) (1977).

Part 242, entitled Proceedings to Determine Deportability of Aliens in the United States: Apprehension, Custody, Hearing and Appeal, consists of regulatory procedures governing deportation proceedings. Accordingly, if deportation proceedings had been initiated against plaintiff, the denial of the application for adjustment in status could have been raised, once again, for review by the immigration authorities. If a final order of deportation were entered, plaintiff could then obtain review of the order denying him adjustment in status, along with the deportation order, in the court of appeals. See Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). Deportation proceedings have not been initiated by the Immigration and Naturalization Service and this clear method of review is not available to plaintiff in the circumstances of this case. Thus, the difficult issue is whether, in the absence of such an order, this court has jurisdiction to review the discretionary denial of adjustment in status.

None of the cases cited by plaintiff support his claim that this court has subject matter jurisdiction over this cause. In Javier v. Immigration & Naturalization Service, 335 F.Supp. 1391 (N.D.Ill.1971), an alien admitted as a non-immigrant for pleasure submitted a petition to the Immigration and Naturalization Service hereinafter, Service for adjustment in status to a third preference immigrant under Section 203(a)(3) of the Immigration and Nationality Act, as amended. After the petition was denied by the District Director of the Service and deportation proceedings begun, plaintiff sought judicial review of the decision rendered by the Service. The court assumed jurisdiction to review the agency action, but the basis of assuming jurisdiction is not clearly set forth in the opinion. In Randazzo v. Esperdy, 334 F.Supp. 1083 (S.D.N.Y.1970), the court assumed jurisdiction over an action to review a claim by a deportable alien that the refusal of the Service to extend the time within which he could voluntarily depart was an abuse of discretion. The court doubted that it had jurisdiction, but nevertheless proceeded to review the action. Id. at 1085-1086. In Mendez v. Major, 226 F.Supp. 364 (E.D.Mo. 1963), exchange visitors sought judicial review of a decision of the District Director of the Service to withhold a favorable recommendation to the Secretary of State which would have facilitated a favorable adjustment in status. Id. at 365-366. The court assumed jurisdiction for this action under the Administrative Procedure Act and entered judgment for defendant. On appeal, Mendez v. Major, 340 F.2d 128 (8th Cir. 1965), the district court's finding of jurisdiction was upheld. The propriety of assuming jurisdiction under the Administrative Procedure Act is doubtful and this court concludes that this aspect of the decision is no longer viable in light of Califano v. Sanders, supra. In Adame v. Immigration & Naturalization Service, 349 F.Supp. 313 (N.D.Ill.1972), an alien who admitted his deportability sought review of a decision rendered by the District Director of the Service refusing to extend the time in which he could voluntarily depart. The court assumed jurisdiction to review the decision, recognizing "a serious question as to whether this court has jurisdiction to review the actions of the District Director in this case . . .." Id. at 315 (emphasis added). Finally, in Shodeke v. Attorney General of United States, 391 F.Supp. 219 (D.D.C.1975), the court held, simply, that the court of appeals had exclusive jurisdiction over orders made during the course of deportation proceedings. This case, as well as the others cited by plaintiff, is inapposite to this proceeding.

Although none of the cases cited by plaintiff directly support his claim of jurisdiction, this court holds that it has jurisdiction of this cause under Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, and 28 U.S.C. § 1331. The federal question statute provides that

the district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. 28 U.S.C. § 1331(a).

Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, provides that

the district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter.

The subchapter alluded to in this section encompasses, inter alia, provisions dealing with deportation, and adjustment in status under Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255.

Section 279 of the Immigration and Nationality Act is a broad jurisdictional provision conferring jurisdiction in a district court over a wide variety of immigration actions. See, e. g., Stokes v. United States, Immigration & Nat. Serv., 393 F.Supp. 24, 27 (S.D.N.Y.1975); Ming v. Marks, 367 F.Supp. 673 (S.D.N.Y.1973), aff'd, 505 F.2d 1170 (2d Cir. 1974), cert. denied, 421 U.S. 911, 95 S.Ct. 1564, 43 L.Ed.2d 776 (1975); Buckley v. Gibney, 332 F.Supp. 790 (S.D.N. Y.1971), aff'd, 449 F.2d 1305 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 946, 30 L.Ed.2d 789 (1972). Some courts by dicta indicate that a district court acting pursuant to Section 279 of the Immigration and Nationality Act has jurisdiction to review a denial of discretionary relief collateral to a deportation order, where the deportation itself is not challenged. See, e. g., United States ex rel. Parco v. Morris, 426 F.Supp. 976, 978 n.4 (E.D.Penn.1977). The government has on occasion argued that a district court has jurisdiction under Section 279 of the Immigration and Nationality Act to review the Service's denial of an adjustment in status under Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, conceding and contending that the issues raised in such a review are collateral to any subsisting deportation order. See Manarolakis v. Coomey, 416 F.Supp. 532, 534 n.1 (D.Mass.1976), where the court held that it had jurisdiction to review an action based on Section 245 of the Immigration and Nationality Act, pursuant to Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329.

The broad grant of jurisdiction contained in this section is not otherwise circumscribed by Section 106(a) of the Immigration...