Fornalik v. Perryman

• Decision Date: 08 August 2000
• Docket Number: No. 99-2442,99-2442
• Citation: 223 F.3d 523
• Parties: (7th Cir. 2000) BOGUSLAW FORNALIK, Petitioner-Appellant, v. BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 523

223 F.3d 523 (7th Cir. 2000)

BOGUSLAW FORNALIK, Petitioner-Appellant, v. BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 99-2442

In the United States Court of Appeals For the Seventh Circuit

Argued December 6, 1999

Decided August 8, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99-CV-2167--Suzanne B. Conlon, Judge. [Copyrighted Material Omitted] Before Bauer, Diane P. Wood, and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

Boguslaw Fornalik is a seventeen year old whom the Immigration and Naturalization Service (INS) is trying to deport to Poland even though his mother, father, and three brothers are all living in the United States. (Because other members of his family also play important parts in this case, we refer to each individual by his first name.) After proceeding through various INS administrative channels, he filed this habeas corpus action, alleging that he is entitled to immediate permanent resident status by virtue of his father's permanent residency. Meanwhile, he also filed a petition to proceed as an abused child of a lawful permanent resident, a status created by Congress as part of the Violence Against Women Act of 1994 (VAWA), 42 U.S.C. sec. 13981 et seq. (1994). The district court dismissed Boguslaw's habeas petition after the INS had independently determined that he had established a prima facie case under the VAWA, but before it had rendered a final decision.

Between the district court's disposition and our consideration of the case, the Vermont Service Center of the INS notified Boguslaw that it had placed his case in deferred action status for at least fifteen months. At roughly the same time, the Chicago office of the INS told this court that it intends to remove him anyway. No Act of Congress requires us to permit this type of inconsistent treatment and we will not. We therefore reverse the judgment of the district court and remand with instructions to enforce the order from the Vermont Service Center that places Boguslaw in deferred status.

I

A.

Boguslaw's story begins with his father, Ryszard Fornalik, who participated in the 1995 "Diversity Immigrant" visa lottery established under 8 U.S.C. sec. 1153(c). This program established 55,000 immigrant visa numbers that are allocable to citizens of countries that, in recent years, have not been well represented in the flow of immigrants to the United States. Citizens of eligible countries apply and their applications are chosen at random. In 1995, Poland was an eligible country. Ryszard took advantage of that fact, entered the United States, and was successful in the visa lottery. On August 22, 1995, Ryszard's status was adjusted to lawful permanent resident. At this point, Ryszard's wife, Helena, and sons, Boguslaw and Kryzsztof, anticipated that they, too, would come to the United States as permanent residents. The three were coming not merely to join Ryszard in the United States, but also to obtain better medical care for Kryzsztof, who suffers from Epidermolysis Bullosa, a rare genetic skin disorder that requires continuous medication. In September 1996, all three arrived in the United States on tourist visas. Thinking that he was going to stay here, Boguslaw (then 13) enrolled in a local school and, from all indications, began living the life of a typical American teenager.

Ordinarily, when a family intends to immigrate to the United States, the most difficult hurdle has been surmounted once one member becomes a permanent resident (or, better still, a United States citizen). This is because of a general principle in United States immigration law that sets family unity as one of the principal goals of the statutory and regulatory apparatus. In fact, the original title of the Immigration Act of 1990 was the "Family Unity and Employment Opportunity Immigration Act of 1990." See H.R. Rep. 101-723(II) (1990), reprinted in 1990 U.S.C.C.A.N. 6779. The Immigration and Naturalization Act (INA) itself provides that "[a] spouse or child . . . shall be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent." 8 U.S.C. sec. 1153(d). Sometimes, however, the complexities of the immigration laws overwhelm this basic principle.

That is what happened here. The specific problem lay in the rapid expiration of visa numbers reserved through the Diversity Visa program. Under 8 U.S.C. sec. 1154(a)(1)(G) (ii)(II), these visas expire at the end of the fiscal year in which they are issued (September 30). Ryszard's adjustment of status was finalized on August 22, which meant that he and his family had only a little more than a month to arrange their affairs. Apparently, for reasons that are unclear, Ryszard did not place any requests with the INS to proceed with his family's cases at that time. Boguslaw alleges that Ryszard appeared personally at the American Consulate in Warsaw at some point within four months of his adjustment (but not before September 30), but the record does not reveal what he tried to do when he was there. In any event, when the family came to the United States in 1996, they did not have the immigrant visas to which they would have been entitled as derivative beneficiaries of a successful diversity applicant.

Ordinarily, the fact that Boguslaw did not get a visa number by September 30, 1995, would be the end of the story. The INS points out repeatedly that diversity visa numbers are valid only through the end of the fiscal year in which they are issued. But once again, the rules have their exception. As a result of various administrative problems in Poland's 1995 diversity visa program, Congress carved out a special exception that applies only to diversity visas, only to Poland, and only to the 1995 program, which is found in sec. 637 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546. That section commands the Attorney General to grant a diversity visa, without regard to any numerical or priority limitations, to any Polish applicant who:

(1) was selected as a diversity immigrant under such section for fiscal year 1995;

(2) applied for adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 245 of such Act during fiscal year 1995, and whose application, and any associated fees, were accepted by the Attorney General, in accordance with applicable regulations;

(3) was not determined by the Attorney General to be excludable under section 212 of such Act or ineligible under section 203(c)(2) of such Act; and

(4) did not become an alien lawfully admitted for permanent residence during fiscal year 1995.

IIRIRA sec. 637(a).

Boguslaw applied for an adjustment of status to permanent resident alien under this statutory provision. The INS district director denied his request, reasoning that sec. 637 does not apply to Boguslaw's case because he did not meet the requirements of sec. 637(a)(2)--specifically, the requirement of an application for adjustment of status some time during fiscal year 1995.

In October 1997, Boguslaw, along with his mother and brothers, received notices to appear before an immigration judge. However, as a result of a variety of INS administrative errors and his mother's change of address, the timetable for removing his mother and brothers has become quite different from his own, meaning that the Chicago office of the INS intends to send Boguslaw back to Poland by himself. The INS is unconcerned about this, indicating at oral argument that Boguslaw can receive care from his nonagenarian grandmother (about whose physical, mental, and financial condition there is nothing in the record) and that its interpretation of the statutes and regulations relating to his case permits this deportation. Surprisingly, the INS could not articulate an agency policy regarding at what age an unaccompanied child would not be deported alone to a country in which he has not lived for nearly four years, but the subsequent course of this case allows that question to be left for another day.

B.

Facing return to Poland alone, Boguslaw took two steps that affect the present appeal. First, on March 26, 1999, he filed a petition under Form I-360, which is entitled "Petition for Amerasian, Widow, or Special Immigrant." That petition, as required by law, was submitted to the INS Vermont Service Center, which processes all such forms. Second, on April 1, 1999, he filed his habeas corpus petition in the United States District Court for the Northern District of Illinois. The habeas corpus petition, which we discuss first, was based on the theory that Boguslaw is entitled to an immediate adjustment of status, while the Form I-360 procedure was based on his unfortunate condition as an abused child of a visa recipient.

In the habeas corpus action, Boguslaw argued principally that the INS itself is at fault for his irregular status. In his view, it had a duty to notify the American Consulate in Warsaw of Ryszard's success in the diversity lottery and subsequent adjustment of status. By failing to do so, it undermined what would otherwise be Boguslaw's clear entitlement to permanent residency in the United States as a derivative beneficiary of his father. He points to a 1995 State Department Cable that discusses procedures for processing "following to join" applicants. That cable says that "[u]nder current procedures, INS notifies both NVC [the National Visa Center] and posts of the adjustment of status of a principal applicant." The INS counters that it has no duty to inform derivative beneficiaries of a principal immigrant's adjustment of status and that it notifies consular posts only after being prompted to do so. Finding no specific statutory or regulatory command that imposes a duty of...