Clow v. Nelson, CIV-83-239E.

• Decision Date: 13 February 1984
• Docket Number: No. CIV-83-239E.,CIV-83-239E.
• Citation: 579 F. Supp. 981
• Parties: Kenneth CLOW, Plaintiff, v. Alan C. NELSON, Commissioner of the Immigration and Naturalization Service (INS), Stanley E. McKinley, INS Regional Commissioner for the Eastern Region, and Benedict J. Ferro, INS District Director for the Western District of New York, Defendants.
• Court: U.S. District Court — Western District of New York

579 F. Supp. 981

Kenneth CLOW, Plaintiff, v. Alan C. NELSON, Commissioner of the Immigration and Naturalization Service (INS), Stanley E. McKinley, INS Regional Commissioner for the Eastern Region, and Benedict J. Ferro, INS District Director for the Western District of New York, Defendants.

No. CIV-83-239E.

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

February 13, 1984.

Serotte, Reich & Goldstein, Buffalo, N.Y., for plaintiff.

Cheryl Fisher, Asst. U.S. Atty., Buffalo, N.Y., for defendants.

MEMORANDUM and ORDER

ELFVIN, District Judge.

Plaintiff, a citizen of Canada, brought this action seeking to recover his 1981 Pontiac automobile (or its monetary equivalent) which was seized by the Immigration and Naturalization Service ("the INS") on or about October 2, 1981 due to its use in an alleged violation of 8 U.S.C. § 1324. Defendants have moved pursuant to Fed.R. Civ.P. rule 12(b)(1) to dismiss the Complaint for lack of subject matter jurisdiction and alternatively for summary judgment under Fed.R.Civ.P. rule 56(b).

The material facts regarding this action are not disputed. On October 1, 1981 plaintiff, his wife and daughter and one Kantapershad Gopal (also referred to by plaintiff as "Mr. Gupta") departed from Toronto, Canada traveling to New York City. Upon reaching the United States border at the Rainbow Bridge, Niagara Falls, N.Y., the occupants of plaintiff's vehicle claimed to be Canadian citizens. A secondary inspection revealed that Gopal was using another's citizenship card and he subsequently admitted that he was a Guyanese citizen attempting to gain entry into this country by such means. Gopal, a distant relative of plaintiff's wife by way of a former marriage, had previously been denied a visitor's visa to the United States. He and plaintiff's wife had planned this unlawful entry in order to permit him to visit New York City. Plaintiff asserts that he had no knowledge that Gopal was not entitled to enter the United States lawfully or that improper identification was utilized. The INS seized plaintiff's automobile as a conveyance used in violation of 8 U.S.C. § 1324(b)(1).

On October 6, 1981 plaintiff was sent a letter notifying him of his right to request an interview with an officer of the INS in order to present any evidence or arguments challenging the propriety of the seizure. He was also sent notice that the appraised value of the automobile had been found to be $7,400 and that steps were being taken to forfeit the property. The letter further instructed plaintiff that any petition for the remission or mitigation of the property seized should be filed with the INS within thirty days. Enclosures were included setting forth the relevant regulations: 8 C.F.R. § 274.6 regarding appraisal; subsection 274.7 requiring notice to the owner and lienholders; subsection 274.8 concerning advertisement of the intention to forfeit the seized property; subsection 274.9 explaining the claim and bond requirements; subsection 274.10 explaining the summary forfeiture proceeding for property with an appraised value not exceeding $10,000; subsection 274.11 outlining judicial forfeiture in instances where the property's value exceeded $10,000 or where a claim and bond had been filed; subsection 274.12 explaining remission or mitigation petition procedures; and subsection 274.13 containing other applicable provisions.

Plaintiff retained Canadian counsel who filed a petition for remission or mitigation with the INS November 11, 1981 on behalf of Addison on the Bay, Ltd. ("Addison"), a Toronto car dealership. The attorney believed that the dealership was the legal owner of the seized vehicle inasmuch as plaintiff had signed a contract to buy a new car from Addison and was going to trade in the seized vehicle as part of the sales agreement. In addition, plaintiff had executed and given Addison an "Application for Transfer" form to convey title to the vehicle. Counsel reasonably believed that plaintiff had possession of the vehicle merely as a bailee due to the custom of allowing a customer to use the trade-in vehicle until the new automobile is ready for delivery.

On February 2, 1982 the INS informed plaintiff's attorney that the petition had been denied for failure to establish legal title in Addison. The reason given by the INS was that the Application for Transfer had never been completed. An examination of the form reveals that Addison merely had to perform the ministerial act of inserting its name and address in order to establish its ownership; however the petition's denial was not appealed and the question whether title was truly in Addison under Canadian law is not presently before this Court. Plaintiff then retained counsel in the United States who personally met with the INS's Regional Counsel Dale Paige in Vermont in March of 1982. Paige told plaintiff's attorney that further administrative review might very well be barred by the statute of limitations (Complaint, ¶ 24). Plaintiff's attorney then prepared a request for information from the INS under the Freedom of Information Act. The INS informed counsel that, due to a backlog of other requests, attention to plaintiff's request would be delayed.

On or about June 8, 1982 plaintiff's counsel filed a notice of motion to "reopen and reconsider" the earlier petition, a petition, and supporting affidavits. By letter dated September 13, 1982 the INS informed counsel that the vehicle had been placed in official use May 5, 1982 and that the petition was untimely and would not be considered. Regulation 8 C.F.R. § 274.17(a) provides that, once a seized conveyance is in official use or has been sold, a petition for remission or mitigation can no longer be accepted. After further attempts to have the INS reconsider its position, this action was commenced March 3, 1983.

Plaintiff asserts that this Court has subject matter jurisdiction under 8 U.S.C. § 1329, 28 U.S.C. § 1331, 28 U.S.C. § 1355, 28 U.S.C. § 1361 and/or the Fifth Amendment to the Constitution. I need not address each of these bases of jurisdiction inasmuch as I find sufficient subject matter jurisdiction for this action exists pursuant to either 28 U.S.C. § 1361 or 28 U.S.C. § 1331.

Although there is a general rule barring judicial review of a denial of a petition for remission or mitigation—see, e.g., United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897 (8th Cir. 1977); United States v. One 1972 Mercedes-Benz 250, 545 F.2d 1233 (9th Cir. 1976)—this judicially-developed doctrine is subject to a limited exception for cases, such as the instant one, wherein it is alleged that the agency refused to exercise its discretion, rather than abused its discretion. See One 1977 Volvo 242 DL v. United States, 650 F.2d 660 (5th Cir.1981) (recognizing the exception where discretion not exercised); United States v. One 1970 Buick Riviera, 463 F.2d 1168, 1170 (5th Cir.1971), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972) (judiciary can require officials to exercise jurisdiction); United States v. Edwards, 368 F.2d 722, 724 (4th Cir.1966) (mandamus may issue in forfeiture proceeding to compel agency consideration of the merits); Cotonificio Bustese, S.A. v. Morgenthau, 121 F.2d 884 (D.C.Cir.1941) (mandamus available where agency official held himself without authority to consider petition for remission or mitigation). In the case at bar mandamus jurisdiction exists under 28 U.S.C. § 1361 due to the Complaint's allegations that the INS improperly found that it could not consider plaintiff's petition and its request for an order requiring the INS to exercise its...