Gurbisz v. USINS

• Citation: 675 F. Supp. 436
• Decision Date: 15 December 1987
• Docket Number: No. 87 C 7122.,87 C 7122.
• Parties: Ryszard GURBISZ, Plaintiff, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; and A.D. Moyer, Defendants.
• Court: U.S. District Court — Northern District of Illinois

675 F. Supp. 436

Ryszard GURBISZ, Plaintiff, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; and A.D. Moyer, Defendants.

No. 87 C 7122.

United States District Court, N.D. Illinois, E.D.

December 15, 1987.

Richard J. Puchalski, Doss, Puchalski & Keenan, Chicago, Ill., for plaintiff.

Linda A. Wawzenski, Asst. U.S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Petitioner Ryszard Gurbisz has petitioned for a writ of habeas corpus on the grounds that the Attorney General has wrongfully denied him and a class of other Polish nationals Extended Voluntary Departure status pursuant to the Attorney General's powers under the immigration laws. The government has moved to dismiss on the grounds that this court lacks jurisdiction to adjudicate this claim. For the reasons set forth below, this motion is denied.

FACTS

The facts in this case are not in dispute. Petitioner is a 36-year-old citizen of Poland who was admitted as a visitor for pleasure to New York on November 9, 1985. He was authorized to remain in the United States until May 8, 1986.

Unbeknownst to the government, petitioner came here for more than mere pleasure. Prior to seeking the November visa, petitioner had received a letter from a Chicago man whom he had met when he visited Chicago in the late 1970s. The man invited petitioner to come and work at his bakery in Chicago, Illinois while he, the baker, sought a permanent visa for petitioner. Petitioner accepted the invitation. He did not, however, reveal his true intentions to the United States government.

By working in the bakery, petitioner violated the conditions of his non-immigrant status as set forth in § 241(a)(9) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(9), and became subject to deportation. On February 13, 1986, respondents served petitioner with an order to show cause why he should not be deported and took him into custody. That same day, petitioner was released from custody under a $1,500 bond.

Petitioner did not contest his deportability under § 241(c). Instead, on May 21, 1986 he petitioned for political asylum on the grounds that he would be subject to political persecution if he returned to Poland. A hearing on the asylum application was set for May 13, 1987.¹

At the May 13 hearing, petitioner withdrew his application for political asylum and instead requested the relief of statutory voluntary departure. The immigration judge granted his request, on the condition that petitioner depart this country by August 13, 1987, with a final order of deportation to issue on that date if he did not. Petitioner agreed, but when August 13 came he did not depart. Instead, he filed the instant petition for a writ of habeas corpus, alleging that he is entitled to nonstatutory Extended Voluntary Departure status on account of his Polish citizenship.

Extended Voluntary Departure ("EVD") is an extrastatutory form of discretionary relief granted by the Attorney General to particular groups of aliens. The grant of EVD status by the Attorney General results in the suspension of deportation proceedings against individuals within the specified groups irrespective of their individual deportability. Petitioner claims that he should have been granted EVD status on the grounds that the Attorney General's refusal to extend EVD status to all Polish nationals, in light of the extension to Polish nationals who entered the United States prior to January 21, 1984, was arbitrary and capricious and an abuse of discretion. He therefore asks this court to order the Attorney General to extend EVD status to all Polish nationals currently within this country, an action which would save him from the imminent deportation he now faces.

Petitioner has alleged two independent grounds for subject matter jurisdiction in this court. First, petitioner invokes this court's habeas corpus jurisdiction under INA § 106(a)(9), 8 U.S.C. § 1105a(a)(9), on the grounds that, although he is not in physical custody, the order of deportation places him in constructive custody for the purposes of the habeas provision. Second, petitioner claims that this court has general subject matter jurisdiction to review the Attorney General's actions pursuant to the interplay of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. and INA § 279, 8 U.S.C. § 1329. The government has moved to dismiss the petition on a variety of jurisdictional grounds.

DISCUSSION

I. SUBJECT MATTER JURISDICTION

The government first argues that this court lacks habeas jurisdiction because petitioner is not "in custody" for the purposes of the INA's habeas provision, and because petitioner did not exhaust his administrative remedies prior to filing this lawsuit. The government does not argue that the matter addressed by petitioner's complaint falls outside the scope of the INA's habeas jurisdictional grant, nor does the government argue that petitioner's claim falls without the scope of the general jurisdictional grant of INA § 279. Nevertheless, because of the complicated nature of the INA's jurisdictional provisions, and in recognition of this court's duty to resolve jurisdictional issues not raised by the government, see Terrado v. Moyer, 820 F.2d 920 (7th Cir.1987), a discussion of the INA's jurisdictional provisions, and their application to this case, is in order.

A. General Subject Matter Jurisdiction

INA § 279, 8 U.S.C. § 1329, grants to federal district courts "jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter." INA § 106, 8 U.S.C. § 1105a, however, limits § 279 by giving to the courts of appeals exclusive jurisdiction over all "petitions for judicial review of final orders of deportation entered against aliens in the United States pursuant to administrative proceedings under § 242(b) of the Act, 8 U.S.C. § 1252(b)." Salehi v. District Director, I.N.S., 796 F.2d 1286, 1297 (10th Cir.1986).

The Supreme Court and lower courts have clarified that the exclusive jurisdiction of § 106 extends not only to "the actual order of deportation, but to all orders closely related to the deportation proceeding ... and entered during the proceeding, such as an order denying voluntary departure or an adjustment of status." Carvajal-Munoz v. INS, 743 F.2d 562, 566 (7th Cir.1984). See also Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964); Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). Thus, if an issue may be adjudicated by an immigration judge, it may not be reviewed by a district court pursuant to § 279. Bothyo v. Moyer, 772 F.2d 353, 355 n. 1 (7th Cir. 1985). If, on the other hand, the issue is one over which the immigration judge lacks original jurisdiction — i.e., those decisions left solely to the district director, see generally Martin, Major Issues in Immigration Law 101-02 (1987),² — then § 279 gives the district court subject-matter jurisdiction over the issue.³ Carvajal-Munoz v. INS, 743 F.2d at 567; Wall v. INS, 722 F.2d 1442 (9th Cir.1984) (denial of deferred action status); Ghorbani v. INS, 686 F.2d 784 (9th Cir.1982) (refusal to reinstate nonimmigrant student status). See also Cheng Fan Kwok v. INS, 392 U.S. 206, 210, 88 S.Ct. 1970, 1973, 20 L.Ed.2d 1037 (1968) (motions for stay of deportation filed with district directors).

In this case, petitioner is challenging the decision of the Attorney General not to grant him, and all other Polish nationals who have entered the United States since January 21, 1984, Extended Voluntary Departure status. The INS has emphasized that the decision to grant EVD status lies solely with the Attorney General:

"EVD" refers to a blanket exercise of prosecutorial discretion to withhold enforced departure for a national group for a limited period of time. "EVD" may only be authorized by the Attorney General usually with the advice of the Secretary of State.

61 Interp.Rel. 6 (February 10, 1984).⁴

Thus, petitioner could not challenge the decision to withhold EVD status from him in his § 242(b) proceeding before the immigration judge, and § 279 gives this court subject matter jurisdiction over this issue.⁵

B. Habeas Corpus Jurisdiction

INA § 106(a)(9) states that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a)(9) (1970 & West Supp. 1986). The interplay of § 106(a)(9) with the other jurisdictional provisions of the INA has become a matter of substantial controversy. Although Congress clearly intended it as an exception to the exclusive jurisdiction of the court of appeals,⁶ Williams v. INS, 795 F.2d 738, 744 n. 3 (9th Cir.1986), some courts have held that this congressional intent need not control. The reason for this lies in the Supreme Court's recent expansion in the meaning of "in custody" for the purposes of habeas jurisdiction, see, e.g., Hensley v. Municipal Court, 411 U.S. 345, 348-49, 93 S.Ct. 1571, 1573-74, 36 L.Ed.2d 294 (1973), which has threatened to render the exclusivity provision meaningless. Since an alien subject to a final order of deportation is now "in custody" for the purposes of habeas, see, e.g., Geisser v. United States, 513 F.2d 862 (5th Cir.1975), cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981) (grant of voluntary departure with an alternative of deportation provides sufficient custody to support petition for habeas), interpreting § 106(a)(9) as an exception to § 106(a) would give virtually every alien access to a district court for review of deportation orders, see United States ex. rel Marcello v. District Director, 634 F.2d 964, 971 n. 11 (5th Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 421 (1981), a result clearly not contemplated by Congress when it enacted the INA in 1961.

Yet, to hold that § 106(a)(9) is not an exception to § 106(a), but rather extends only to cases falling outside the...