Padula v. Immigration & Naturalization Serv., Civ. No. H-82-92.

• Decision Date: 31 March 1982
• Docket Number: Civ. No. H-82-92.
• Citation: 537 F. Supp. 563
• Court: U.S. District Court — District of Connecticut
• Parties: Antonio PADULA and Guiseppina Sestina Di Sanzo Padula, Petitioners, v. U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

537 F. Supp. 563

Antonio PADULA and Guiseppina Sestina Di Sanzo Padula, Petitioners, v. U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civ. No. H-82-92.

United States District Court, D. Connecticut.

March 31, 1982.

Edward R. Smoragiewicz, Cardwell, Cardwell & Smoragiewicz, Hartford, Conn., for petitioners.

George J. Kelly, Jr., Asst. U. S. Atty., Hartford, Conn., for respondent.

RULING ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

BLUMENFELD, Senior District Judge.

Plaintiffs, Antonio and Guiseppina Sestina Di Sanzo Padula, bring this action challenging the District Director's denial of their request for an extension of time in which to voluntarily depart from this country. Plaintiffs contend that the District Director abused his discretion in denying their request for an extension of time. The basis of this claim is that the plaintiffs' children, both United States citizens, will either be deprived of their parents or forced to withdraw from school during the school term, if their parents are forced to return to Italy prior to June 22, 1982. Plaintiffs seek a preliminary injunction restraining the Immigration and Naturalization Service (INS) from deporting them prior to June 23, 1982, the end of the school term. Jurisdiction, although not pleaded by the plaintiffs, arguably exists under section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, which confers upon the district courts jurisdiction of all causes arising under any of the provisions of subchapter II of the Act.¹ A hearing on the motion for preliminary injunction was held on March 8, 1982, at which time a stipulation of facts and several other exhibits were received into evidence.

I. BACKGROUND

The plaintiff, Guiseppina Sestina Di Sanzo Padula, was admitted to the United States as a permanent resident on May 11, 1968. She was married to the plaintiff, Antonio Padula, in the United States on February 15, 1969. Mr. Padula gained permanent resident status on December 31, 1969. The plaintiffs have two children, Leone, born June 22, 1970, and Innocenzo, born August 19, 1971, both citizens of the United States.

Plaintiffs and their children returned to Italy and on December 10, 1974 voluntarily surrendered their permanent resident cards. They remained in Italy until they reentered the United States on July 3, 1980 on visitors visas, which expired on August 25, 1980. On August 25, 1980, Mr. and Mrs. Padula submitted a request for an extension of their visas, stating that they intended to depart the United States on October 8, 1980. Their request was denied but they were granted voluntary departure until January 10, 1981, which would have allowed them to depart at the end of the school term. The plaintiffs overstayed this departure date, and an order to show cause why they should not be deported was issued on February 18, 1981. Thereafter, an order granting voluntary departure was entered on October 1, 1981, with a departure date of no later than January 4, 1982. This voluntary departure date was further extended until January 20, 1982.

On January 13, 1982 plaintiffs, through counsel, requested an extension of the voluntary departure date of January 20, 1982 until June 23, 1982 so that their children could complete the school term. On January 18, 1982 the INS denied the request for an additional extension of time and required the plaintiffs to depart this country by January 20, 1982. On January 19, 1982 plaintiffs filed an application for a stay of deportation. The application was denied on January 26, 1982 and on the same day the INS issued an order of deportation with a departure date of February 8, 1982.

On February 5, 1982 the plaintiffs, through counsel, argued a motion to reopen and a motion to stay deportation before Immigration Judge Nathan Gordon. The judge restored voluntary departure, but stated that he was powerless to grant an additional extension of time. The immigration judge directed plaintiffs' counsel to make his request for an extension of time to the District Director, who has it within his discretion to grant such a request. Plaintiffs' counsel then requested a meeting with the District Director so that he might request such an extension of time on behalf of his clients. The District Director, however, would not discuss the matter with plaintiff's counsel at that time.

On February 9, 1982 the INS issued Form I-210, which informed the plaintiffs that they were required to leave the country by February 16, 1982. Subsequently on February 22, 1982, the INS issued an order of deportation with a departure date of March 2, 1982. On that date plaintiffs sought and obtained an order from this court restraining the defendant from deporting them and setting the motion for preliminary injunction down for a hearing on March 8, 1982.

During their stay in this country, plaintiffs reapplied for permanent resident status and were given a priority date of September 8, 1980. Visas will be issued to them as soon as their priority date reaches current status and they may adjust their status to permanent residents without leaving the United States.

II. DISCUSSION

A. Jurisdiction.

As stated previously, the plaintiffs have not pleaded a jurisdictional basis which would allow this court to entertain their appeal from the District Director's denial of their request for an extension of time to voluntarily depart from the United States. Nor has the defendant objected to the complaint on this ground. The parties, however, cannot confer jurisdiction on this court simply by their consent, and the court may raise the issue of lack of jurisdiction over the subject matter on its own initiative. See 2A Moore's Federal Practice 2458-2461.

In the instant case, subject matter jurisdiction is arguably conferred by section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, which 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 title title II of the Act of June 27, 1952, classified generally as 8 U.S.C. §§ 1151 et seq." "Section 279 was subsequently modified by the addition of section 106 of the Act, 8 U.S.C.A. § 1105a, which conferred upon the courts of appeals exclusive jurisdiction to review final orders of deportation made by the INS against aliens within the United States." Acosta v. Gaffney, 558 F.2d 1153, 1155 (3d Cir. 1977). Because the instant case does not involve the review of a final order of deportation, section 106 of the Act does not limit this court's jurisdiction.

The question of jurisdiction arises, however, because of the following provision in the Code of Federal Regulations.

Extension of time to depart

Authority to extend the time within which to depart voluntarily specified initially by a special inquiry officer immigration judge or the Board of Immigration Appeals is within the sole jurisdiction of the district director. A request by an alien for an extension of time within which to depart voluntarily shall be filed with the district director having jurisdiction over the alien's place of residence. Written notice of the district director's decision shall be served upon the alien, and no appeal may be taken therefrom.

8 C.F.R. § 244.2 (emphasis added). The underlined language in the above quotation would, if taken at face value, preclude an appeal from the District Director's decision denying plaintiffs' request for an extension of time to depart. Other district courts, when faced with this problem, have expressed their doubts about their power to consider an appeal from the District Director's decision. Yet they nonetheless assumed jurisdiction over this type of claim and reviewed the District Director's actions on the merits.

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 1085-86.

Nasan v. Immigration and Naturalization Service, 449 F.Supp. 244, 246 (N.D.Ill.1978). Similarly, in Adame v. Immigration and Naturalization Service, 349 F.Supp. 313 (N.D.Ill.1972), the court stated as follows:

Although there is a serious question as to whether this court has jurisdiction to review the actions of the District Director in this case, Randazzo v. Esperdy, 334 F.Supp. 1083 (S.D.N.Y.1970); Kelch v. Kennedy, 209 F.Supp. 416 (D.Md.1962); 8 C.F.R. § 244.2, it is at least clear that the scope of review is very narrow. Fernandez-Gonzalez v. Immigration and Naturalization Service, 347 F.2d 737 (7th Cir. 1965). Only in the case of a clear showing of abuse of discretion can this court upset the decision of the District Director. Kladis v. Immigration and Naturalization Service, 343 F.2d 513 (7th Cir. 1965).

Id. at 315.

Following the example of these decisions, I will assume jurisdiction over plaintiffs' claim without attempting to definitively resolve the complex questions going to this court's jurisdiction. I stress, however, that even if the "denial of an extension of voluntary departure is reviewable, the scope of review is quite narrow. This court should not substitute its judgment for that of the District Director's unless his decision is found to be a clear abuse of discretion." Randazzo v. Esperdy, 334 F.Supp. at 1086.

B. Standard for Issuance of Preliminary Injunction.

The standard for the issuance of a preliminary injunction in this circuit requires the following: "a showing of irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Caulfield v. Board of Education of the City of...