Alkatabi v. US DEPT. OF JUSTICE INS

• Decision Date: 04 November 1991
• Docket Number: No. 91-CIV-1161 (LJF).,91-CIV-1161 (LJF).
• Citation: 777 F. Supp. 271
• Parties: Christine and Hasan ALKATABI, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

777 F. Supp. 271

Christine and Hasan ALKATABI, Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.

No. 91-CIV-1161 (LJF).

United States District Court, S.D. New York.

October 30, 1991.

Opinion and Order on Motion for Reargument November 4, 1991.

Hasan Alkatabi, pro se.

Otto G. Obermaier, U.S. Atty. by James A. O'Brien, III, Asst. U.S. Atty., S.D.N.Y., New York City, for defendants.

OPINION AND ORDER

FREEH, District Judge.

In this action, plaintiffs Christine and Hasan Alkatabi claim that the Immigration and Naturalization Service (the "INS") and several INS examiners discriminated against them on the basis of race in violation of the 5th Amendment by delaying the granting of Mrs. Alkatabi's immediate relative petition on behalf of her husband, Hasan.¹ (Complaint ¶ 18)². Defendants have moved for summary judgment. For the reasons stated below, defendants' motion is granted.

FACTS

Plaintiff Christine Alkatabi is a United States citizen, but her husband is a native of Yemen. On March 27, 1987, Mrs. Alkatabi filed an immediate relative petition with the INS, seeking to have her husband declared a permanent resident of the United States. In support of the immediate relative petition, the Alkatabis submitted a copy of Mr. Alkatabi's Yemen divorce decree from a prior marriage. In July 1987, the INS examiner handling the petition, defendant Frank Lucas ("Lucas"), sent a copy of the decree to the United States Consular offices in Yemen for verification.

The following month, Mr. Alkatabi applied to the INS for "advance parole," or permission to leave the country temporarily and re-enter with the same alien status as he held previously. Mr. Alkatabi sought to return to Yemen to visit his mother, who was ill. The request for advance parole was denied, however, because Mr. Alkatabi did not submit any evidence of his mother's medical condition and relied solely on a telegram that appeared to have been fabricated.

In September 1987, the Yemen Consulate informed the INS that Mr. Alkatabi's divorce decree was invalid. When Mr. Alkatabi reapplied for advance parole in November 1987, the INS again denied the request, based on the invalidity of the divorce decree. See Massoud v. Attorney General of the United States, 459 F.Supp. 672, 676-77 (W.D.Mo.1978) (INS's decision to deny advance parole where applicant cannot make a prima facie showing of eligibility for remaining in the United States not arbitrary and capricious).

The Alkatabis eventually retained counsel, Barbara Nelson, who reapplied for advance parole on Mr. Alkatabi's behalf, claiming that he had further evidence of his divorce. That application and several subsequent requests were all denied because the Alkatabis failed to present official documents evidencing the Yemen divorce. In March 1988, the Alkatabis dismissed Ms. Nelson as counsel.

On April 14, 1988, before a final decision was issued on the Alkatabi's immediate relative petition, Mr. Alkatabi filed a Form I-700 application, seeking admission to the United States as a "special agricultural worker" (the "SAW" application). 8 U.S.C. § 1160. Mr. Alkatabi's INS administrative file was then transferred to the INS Legalization Branch at the Eastern Regional Office in St. Albans, Vermont. On January 9, 1989, the INS notified Mr. Alkatabi of its intent to deny his SAW application. Mr. Alkatabi responded with more information in support of that application, which was nonetheless denied on February 5, 1990.

After repeated requests by the Alkatabis and letters of inquiry on their behalf from Senator Alphonse D'Amato's office, in November 1990 the INS consolidated Mr. Alkatabi's two administrative files (for the SAW application and immediate relative petition) and transferred them to the INS's District Office in New York City. During telephone conversations with the Alkatabis in early December 1990, INS Supervisory Examiner Irma Williams ("Williams") explained that the delay in processing their immediate relative petition was caused by the file transfer required to address Mr. Alkatabi's SAW application. At that time, Williams also denied the Alkatabis' request to replace Lucas as their assigned examiner because, despite the Alkatabis' allegations, she had no reason to believe that Lucas was prejudiced against them.

On December 6, 1990, the INS notified the Alkatabis of its intent to deny their immediate relative petition based on their failure to submit official documents evidencing Mr. Alkatabi's Yemen divorce. The Alkatabis apparently failed to offer, in a timely manner, evidence in opposition to the denial, and their petition was subsequently denied.³ However, in response to further requests by the Alkatabis to the INS New York District Director, among others, the Alkatabis were permitted to submit additional evidence regarding the Yemen divorce and on February 5, 1991, the Alkatabis' immediate relative petition was granted. Several weeks later, the Alkatabis commenced this action, alleging that the delay in deciding their petition was discriminatory and violated their constitutional rights. Defendants now move for summary judgment.

DISCUSSION

The Alkatabis seek money damages for injuries allegedly caused by the INS and its employees, claiming that the agency unlawfully discriminated against them by delaying the processing of their immediate relative petition. Under 28 U.S.C. § 1331, United States district courts have jurisdiction to hear "all civil actions arising under the Constitution." That rule is limited by the doctrine of sovereign immunity, however, which protects the United States from liability unless consent to sue is given. Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983); Keene Corp. v. United States, 700 F.2d 836, 838 n. 3 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).

To the extent that the Alkatabis are suing the INS and the individual examiners in their official capacity, this is an action against the United States, because any monies owed by the defendants would be paid out of government funds. Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947) (action is against the sovereign if the "essential nature and effect of the proceeding is such as to make plain that the judgment sought would expend itself on the public treasury or domain ..."), overruled by implication on other grounds, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Thus, in order for the Alkatabis to proceed against the agency and the individual defendants in their official capacity, they must rely on some waiver of sovereign immunity. Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 869-70 (2d Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978). The Alkatabis have alleged no such waiver, and the government claims that no statutory basis for waiver of immunity applies. Because the plaintiffs are proceeding pro se, the Court will, on its own initiative, consider whether the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., provides any basis for relief here.⁴

The FTCA provides that sovereign immunity is waived and that federal courts have jurisdiction to hear all cases seeking money damages for injuries caused by the wrongful or negligent act of government employees acting within the scope of their employment. Arguably, the excessive processing delay about which the Alkatabis complain constitutes negligence on the part of INS employees. The FTCA further states, however, that a claim may not be initiated under the Act unless the claimant "shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing ..." 28 U.S.C. § 2675(a). The Alkatabis have not pursued agency relief prior to initiating this lawsuit. Because they have not satisfied the statutory requirements, an FTCA action against the INS cannot be maintained.⁵

In addition to the agency, the Alkatabis have named three INS employees as defendants, but do not specify whether those employees are being sued in their individual or official capacities. Even assuming, however, that the Alkatabis are proceeding against the INS examiners in their individual capacities, the Alkatabis have not stated a claim for which relief can be granted.⁶ Fed.R.Civ.P. 12(b)(6).

In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized a cause of action for money damages against individual federal law enforcement agents for alleged violations of the plaintiff's fourth amendment rights. That rule was later extended to violations of the due process clause of the 5th Amendment, the constitutional provision relied upon by the Alkatabis. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

In recent years, the Supreme Court has limited Bivens actions and has held that no cause of action will exist when "the design of a government program suggests that Congress has what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration." If there is any indication that Congress' failure to provide such remedial measures was not "inadvertent," Bivens relief is not available. Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 2468, 101 L.Ed.2d 370 (1988).

The Alkatabis have not demonstrated that they have no form of relief available to them other than this lawsuit. Even if they had, however, the Alkatabis have not alleged sufficient facts to demonstrate discriminatory intent on the part of the defendant INS examiners, a necessary element of any discrimination claim. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S....