Ishak v. DIST. DIR., IMM. AND NAT. SERVICE, ETC., 77 C 394.

• Decision Date: 03 June 1977
• Docket Number: No. 77 C 394.,77 C 394.
• Citation: 432 F. Supp. 624
• Parties: Malek Saddik ISHAK, Plaintiff, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

432 F. Supp. 624

Malek Saddik ISHAK, Plaintiff, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. 77 C 394.

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

June 3, 1977.

Samuel D. Myers, Freedman, Freedman & Myers, Ltd., Chicago, Ill., for plaintiff.

Samuel K. Skinner, U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

CROWLEY, District Judge.

The plaintiff, Malek Saddik Ishak, has petitioned this Court, in an action pursuant to 28 U.S.C. § 2201, 5 U.S.C. § 704 and 28 U.S.C. § 1301, to direct the defendant, District Director of the Immigration and Naturalization Service, to grant plaintiff's application for permanent residence status as a refugee who fears religious and political persecution in a Middle East country, as provided in Section 203(a)(7) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(7). The defendant has moved to dismiss the complaint according to the provisions of Rule 12(b)(6) of the F.R.C.P. for failure to state a claim upon which relief can be granted, or in the alternative for summary judgment, pursuant to Rule 56 of the F.R.C.P. After reviewing the administrative record filed in this action and considering the briefs of counsel, we must grant defendant's motion for summary judgment.

The scope of judicial review in cases of denial of a preference visa is quite narrow and is limited to a determination as to whether the Director abused his discretion in denying such a preferential classification; abuse of discretion may be found only if there is no evidence to support the decision or if the decision is based on an improper understanding of the law. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir., 1971); Nazareno v. Attorney General of the U. S., 366 F.Supp. 1219 (D.C.1973) affirmed 168 U.S.App.D.C. 22, 512 F.2d 936 (1975). More specifically, in challenging denial of an application for refugee status, the alien has a two-fold burden. He must establish that he would be persecuted upon returning to his native country and that the District Director abused his discretion by his denial of the application. Shkukani v. Immigration and Naturalization Service, 435 F.2d 1378 (8th Cir., 1971), cert. den. 403 U.S. 920, 91 S.Ct. 2237, 29 L.Ed.2d 698; Chang Kai Fu v. Immigration and Naturalization Service, 386 F.2d 750 (2d Cir., 1967), cert. den. 390 U.S. 1003, 88 S.Ct. 1247, 20 L.Ed.2d 104.

The plaintiff was born in Syria in 1947 and resided there with his family until he travelled to Lebanon with a valid Syrian passport and Lebanese entry visa in June, 1972. He was granted permission to enter the United States on an F-1 student visa classification and arrived in this country in September, 1972. His Syrian passport was renewed in April, 1974, and in September, 1974, he applied for adjustment of status to that of a lawful permanent resident under § 203(a)(7) of the Immigration and Naturalization Act, alleging fear of potential persecution because of his religious faith as an Assyrian Christian. The application was denied in September, 1975, and the Regional Commissioner affirmed the decision of the District Director on December 31, 1975. Plaintiff was ordered on January 26, 1976, to leave the United States before February 15, 1976; he presently remains in Chicago in violation of this directive.

Plaintiff advances three arguments in opposition to the defendant's motion to dismiss or for summary judgment: (1) that eight cases in which preferential classification was granted were not adequately examined and given proper precedential value; (2) that the burden of establishing the probability of persecution upon his return to his home country is high and has been met to the best of his ability and (3) that the District Director abused his discretion and improperly relied upon an opinion letter from the Office of Refugee and Migration Affairs of the Department of State in reaching his decision to deny classification.

First, we note that the District Director is given discretion to act on petitions for permanent residence status precisely because he is required to examine all the facts presented to him in each situation on the merits of those particular circumstances. He need not give binding precedential weight to his previous decisions on other petitions, and the contention that he should is wholly without merit. U. S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Wolf v. Boyd, 238 F.2d 249 (9th Cir., 1956). Therefore, we need only review the immediate claims of plaintiff as he has presented them and determine if his burden of proof was met, and if so, whether denial of his petition was an abuse of discretion.

Secondly, then, we must consider whether the plaintiff has sustained his burden of demonstrating the...