De Leon v. Kiley, 78 Civ. 1200(MP).
| Decision Date | 28 November 1978 |
| Docket Number | No. 78 Civ. 1200(MP).,78 Civ. 1200(MP). |
| Citation | 461 F. Supp. 273 |
| Parties | Leonila DE LEON and Rufina R. Bedana, Plaintiffs, v. Maurice F. KILEY, District Director Immigration and Naturalization Service, New York, New York, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Barst & Mukamal, New York City, for plaintiffs, by Edward L. Dubroff, New York City.
Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, by Katherine J. Trager, Sp. Asst. U. S. Atty.
DECISION
Defendant, Kiley, the District Director of Immigration and Naturalization Service ("Service") moves pursuant to Rule 56, Fed. R.Civ.P., for summary judgment in his favor dismissing the complaint. For the reasons shown hereafter, the motion will be granted.
Plaintiffs sue for a declaratory judgment and for a review of an administrative determination involving an immigrant visa petition and for a stay of deportation. Leonila De Leon ("De Leon"), a resident alien seeks a visa preference status for and on behalf of her alleged daughter, Rufina R. Bedana ("Bedana"), an unmarried woman, 40 years of age. De Leon, a citizen of the Philippines, was granted entry into the United States (at Honolulu) as a permanent alien resident on March 24, 1976. On June 8, 1976 Bedana arrived in this country as a so-called B-2 visitor, her stay herein to expire on September 15, 1976. Shortly before that expiration date, on August 26, 1976, Bedana filed a petition for a visa — a second preference status — under section 203(a)(2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1153(a)(2) under which visas are allocated "to qualified immigrants who are the spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence."1
Upon review of the petition and the supporting documents, the defendant, on March 18, 1977, denied the visa petition for Bedana, it appearing from substantial evidence that Bedana was not as claimed by De Leon, her illegitimate daughter, but rather De Leon's niece, the child of a deceased sister, Socorro Renoso Bedana and the latter's husband, also deceased, Rufino Bedana.
On appeal to the Board of Immigration Appeals it was contended on behalf of plaintiffs that new evidence existed which would support the claimed relationship and on their motion for remand before the date set for oral argument of the appeal the proceedings were remanded to the Service on July 17, 1977 for consideration of the alleged new evidence. On July 21, 1977 the defendant concluded that the new evidence submitted is insufficient to overcome the evidence presented in official documents and the order of March 18, 1977 denying the visa petition was reaffirmed by the defendant and the record of proceedings was certified to the Board of Immigration Appeals.
The case on appeal was argued orally on November 16, 1977 and on January 31, 1978 the decision of the defendant was affirmed, in opinion.
This suit was then filed by plaintiffs asserting that the adverse decisions mentioned were not rationally based, constituted an abuse of discretion, and represented unfair administrative procedures in that plaintiffs were not given an administrative hearing, albeit that none had been requested by plaintiffs or their counsel.
In its papers on the motion for summary judgment, the government contends that an examination of the administrative record of evidence, as a matter of law, establishes by substantial evidence a rational explanation of the agency's determination, an entire absence of any invidious discrimination, and conformance with rather than departure from established law and practise. Thus, as a matter of law, no abuse of discretion could be found in the agency's result.
The Court's review of a matter of this kind is limited to the administrative record. Richards v. I.N.S., 180 U.S.App.D.C. 314, 554 F.2d 1173 (1977); Royalton College, Inc. v. Clark, 295 F.Supp. 365 (D.Vt.1969); Flower Furniture Mfg. Corp. v. Esperdy, 229 F.Supp. 182 (S.D.N.Y.1962). Plaintiffs have no right to a trial by this Court de novo. 6 J. Moore, Federal Practice, ¶ 56.173 p. 56-693.
The undisputed proof from official sources establishes the following as fact.
The plaintiff, Bedana, was born in the Philippines on January 9, 1938. The official certificate of birth dated January 9, 1938 states that the birth was in the City of Manilla at Nippon Maternity Hospital. The certificate recites the child's name as "Rufina Mazaria Bedana"; father's full name, "Rufino Bedana"; mother's maiden name, "Socorro Renoso"; citizenship of both parents "Filipino"; civil status of the parents, "married". Appearing on the certificate of birth is the certification of the midwife named thereon that she attended the birth of this child to Socorro Renoso (Bedana) at the maternity hospital mentioned.
The parents of the child were of the Catholic faith and on April 10, 1938, the Catholic Priest of Baguio Cathedral issued a baptismal certificate of a church record listing the same individuals as the parents of Rufina Mazaria Bedana, plaintiff herein.
The co-plaintiff, whose maiden name was Leonile L. Reynoso, married Doroteo Cruz De Leon in March 1944, in the Philippines. There were a number of children born to this couple thereafter in the Philippines, one of whom — a daughter — became a United States citizen.
Rufino Bedana died on August 31, 1954 in the Philippines and his wife Socorro M. Bedana died on January 23, 1970 in the Philippines.
On March 24, 1976 the plaintiff, De Leon, still a Philippine citizen, arrived in the United States (at Honolulu) as a permanent alien resident. De Leon was able to gain entry as a parent of a United...
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