Emmanuel v. USINS, Civ. No. 1982/205.

• Decision Date: 15 February 1984
• Docket Number: Civ. No. 1982/205.
• Citation: 579 F. Supp. 1541
• Parties: Clarence T. EMMANUEL et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE et al., Respondents.
• Court: U.S. District Court — Virgin Islands

579 F. Supp. 1541

Clarence T. EMMANUEL et al., Petitioners, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE et al., Respondents.

Civ. No. 1982/205.

District Court, Virgin Islands, D. St. Croix.

February 15, 1984.

Brian L. Masony, Christiansted, St. Croix, V.I., for petitioners.

Genevieve Holm, and Vivian Reyes, Asst. U.S. Atty., Christiansted, St. Croix, V.I., for respondents.

MEMORANDUM OPINION AND ORDER

DAVID V. O'BRIEN, District Judge.

Respondents, the U.S. Immigration and Naturalization Service et. al. (hereafter "INS") have moved this Court for summary judgment, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure on the grounds that the Court lacks subject matter jurisdiction, the District Director did not abuse his discretion in denying petitioners' applications, and there are no genuine issues as to any material fact. For the reasons set forth herein, we grant respondents' motion and deny the petition for writ of habeas corpus, declaratory judgment, injunctive relief, and to compel.

I. FACTS

Petitioner, Clarence Timothy Emmanuel (hereafter petitioner) is a 32 year old native and citizen of St. Lucia, West Indies, who presently resides in St. Croix. He has been married to petitioner Florena Emmanuel (hereafter Mrs. Emmanuel), a permanent resident of the United States, since May 16, 1980. Mrs. Emmanuel has two sons, one of whom is a United States citizen.

Petitioner first entered the United States on February 22, 1970 as a non-immigrant, temporary visitor authorized to remain for one month. Having failed to leave within the allotted time, he was granted voluntary departure on April 20, 1970 but did not exit as directed. Three years later, on March 13, 1973, he was located on St. Croix and processed as a deportable alien. He was again granted voluntary departure and left the Territory under safeguard.

Petitioner returned to the United States on December 23, 1974 as a non-immigrant crewman. He was apprehended in St. Thomas accepting unauthorized employment from Pet-Denia, Inc. and ordered to depart by January 22, 1975. According to the Decision of the Regional Commissioner petitioner left, but promptly returned as a crewman on January 30, 1975. Although not completely clear in the record, petitioner claims that he has been in the United States continuously since 1974.

Nevertheless, it was not until October 2, 1979 that petitioner was again encountered by the authorities at the Golden Grove Adult Correctional Facility in St. Croix after he was arrested and charged with filing a fraudulent insurance claim, receiving money under false pretenses, and filing a false report of theft.

On October 3, 1979, the Immigration and Naturalization Service caused an order to be served upon petitioner to show cause why he should not be deported and gave him notice of a hearing thereon.

Petitioner was convicted in the District Court of the Virgin Islands on a plea of guilty to the crime of obtaining money under false pretenses on December 21, 1979. He received a five year suspended sentence and was placed on supervised probation for a period of five years. The conditions of his probation included transferring title of an automobile and making full restitution, both of which he has complied with.

After marrying Mrs. Emmanuel on May 16, 1980, petitioner filed a petition for a Waiver of Grounds of Excludability pursuant to Section 212 of the Immigration and Naturalization Act.¹

While awaiting a determination Mrs. Emmanuel filed a petition to classify petitioner as an immediate relative with a preference classification under Section 203(a)(2) of the Immigration and Nationality Act² as the spouse of an alien lawfully admitted for permanent residence. It was approved on November 7, 1980 and forwarded to Bridgetown, Barbados.

Notwithstanding, petitioner was ordered deported pursuant to Section 241(a)(2) of the Immigration and Nationality Act³ by the Immigration Judge on January 16, 1981. He applied for a stay of Deportation and for Permission to Reapply for Admission after Deportation on January 19, 1981. Permission was denied on August 17, 1981, but petitioner did not receive the decision until September 23, 1981. Petitioner's motion to file a late appeal was denied by the District Director.

Undaunted, petitioner filed a second request for Permission to Reapply for Admission after Deportation on November 23, 1981.

On February 18, 1982 the District Director denied each and every one of petitioners' applications and petitions, stating that petitioner's "flagrant disregard for administrative and criminal laws and repaying debts justifies a finding of poor moral character based on moral turpitude in conduct and attitude."

An appeal of the denial of the Application for Permission to Reapply after Deportation was filed before the Regional Commissioner on April 2, 1982. In a decision dated August 16, 1982 the appeal was dismissed and the District Director's decision was affirmed. Having exhausted all of his administrative remedies, petitioner filed the present action on August 26, 1982 in the form of a petition for writ of habeas corpus, declaratory judgment, injunctive relief, and to compel action of the INS.

II. DISCUSSION

A. Jurisdiction

We are confronted at the outset with the question of whether this Court has jurisdiction to entertain the action. We find that jurisdiction is conferred by Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329 (1976), which gives the district courts jurisdiction of all causes arising under any of the provisions of subchapter II of the Act.⁴

Section 279 was subsequently modified by section 106 of the Act, 8 U.S.C. § 1105a (1976), 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. While section 106 thus withdrew from the district courts their jurisdiction under section 279 to review the validity of deportation orders, it did not affect their jurisdiction to review denials for discretionary relief. Sotelo Mondragon v. Ilchert, 653 F.2d 1254, 1256 (9th Cir.1980) (Review of denial of stay of deportation); Acosta v. Gaffney, 558 F.2d 1153, 1155-56 (3d Cir. 1977) (Review of stay of deportation); Yan Wo Cheng v. Rinaldi, 389 F.Supp. 583, 584 (D.N.J.1975) (Review of matters ancillary to statutory deportation hearing).

Subject matter jurisdiction is also conferred by Title 28 U.S.C. § 1331 (Supp. IV 1980) which was amended in 1980 to grant the district courts original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.⁵

B. Scope of Review

The scope of our review in this case is very limited. As stated by the Third Circuit in Bufalino v. Holland, 277 F.2d 270 (3d Cir.1960):

The right of review by the court of the action of the administrative agency in this case is whether the decision of deportability was based on reasonable, substantial and probative evidence and was neither arbitrary, capricious nor violative of procedural due process.

Id. at 281. See also Junco v. INS, 343 F.2d 474 (3d Cir.1965); Zgodda v. Holland, 184 F.Supp. 847, 850 (E.D.Penn.1960).

As a general rule the courts will not interfere with the discretionary action of the immigration authorities incident to a deportation proceeding except where there has been a clear abuse of discretion. The reviewing court will not substitute its judgment for that of the authorities, but may only determine whether there was an abuse of discretion. See generally 3A C.J.S. Aliens § 238 (1973); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 8.11 (1983).

C. Abuse of Discretion

Petitioner claims that the Acting District Director did indeed abuse his discretion when he denied petitioner's applications on February 18, 1982. These applications consisted of an application to Reapply for Admission after Deportation predicated on 8 U.S.C. § 1182(a)(17)⁶, an application for Waiver of Grounds of Excludability, based on 8 U.S.C. § 1182(h),⁷ and an Application for Stay of Deportation.

The District Director has been delegated the authority to grant such relief in his discretion. He is not without guidelines, however. In Matter of Tin, 14 I & N Dec. 371 (1973), the Regional Commissioner found that in determining an application for permission to reapply after arrest and deportation, all pertinent circumstances relating to the applicant which are set forth in the record of proceedings should be considered.

These include but are not limited to the basis of deportation, recency of deportation, length of residence in the United States, the moral character of the applicant, his respect for law and order, evidence of reformation and rehabilitation, his family responsibilities, any inadmissibility to the United States under other sections of law, hardship involved to himself and others, and the need for his services in the United States.

Id. at 373-74.

Petitioner claims that the Acting District Director abused his discretion by failing to consider factors favorable to the petitioners. Instead of delving into the very important factor of family ties and responsibilities, the District Director noted that a check of petitioner's given address revealed that only Mrs. Emmanuel and her two sons were registered residents. Petitioner submits that his deportation would cause severe hardship for his family and himself. His wife would have to quit her job, leave her elderly father in his declining years, and uproot her two small children to accompany petitioner back to St. Lucia, a country he is no longer familiar with. The family would suffer substantial economic hardship as well.

As unfortunate as the circumstances of this case may be, a reviewing court may not overrule the District Director on humanitarian or any other grounds as long as the Director's decision has a rational explanation. Padula v. Immigration and Naturalization Service, 537...