Lukaszuk v. Haig
| Decision Date | 21 September 1981 |
| Docket Number | No. 80 C 6169.,80 C 6169. |
| Citation | 523 F. Supp. 1029 |
| Parties | Stefan LUKASZUK, Plaintiff, v. Alexander HAIG, Secretary of State of the United States of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Mark Green, Horn & Israel, Chicago, for plaintiff.
Mary Anne Mason, Asst. U.S. Atty., Chicago, for defendant.
Plaintiff Stefan Lukaszuk ("Lukaszuk") brought this action against Secretary of State Alexander M. Haig, Jr. ("the Secretary") in order to challenge regulations promulgated by the Secretary that set forth procedures by which a non-immigrant alien temporarily resident in the United States may secure an adjustment of his or her status to that of a permanent resident. See generally, 8 U.S.C. § 1255; 22 C.F.R. §§ 42.110 and 42.110-2.2 et seq. Lukaszuk claims that the regulations and the manner in which the Secretary has implemented them deprive him of due process of law in violation of the Fifth Amendment to the United States Constitution. Jurisdiction is premised upon 28 U.S.C. §§ 1331, 1332, and 8 U.S.C. § 1329.
This matter is presently before the Court on the Secretary's motion for summary judgment pursuant to Fed.R.Civ.P. 56. In this context, Lukaszuk is entitled to every reasonable inference that may be drawn from the evidence in his favor and the Secretary cannot prevail unless he can show that there is no dispute as to any genuine issue of fact material to a judgment in his favor as a matter of law. Cedillo v. International Association of Bridge & Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir. 1979).
The essential facts are not disputed. Lukaszuk came to this country from his native Poland on September 3, 1974, as a non-immigrant alien visitor. He subsequently secured employment here as a workman with the Chicago Vacuum Casting Corporation. His employer petitioned for and received a labor certification on Lukaszuk's behalf from the Secretary of Labor on January 4, 1977, pursuant to 8 U.S.C. § 1182(a)(14). Its petition to secure sixth preference status for Lukaszuk was approved by the Immigration and Naturalization Service ("INS") on October 28, 1977.1 Lukaszuk's application for adjustment of his status to that of a permanent resident was denied by the INS, however, because he had engaged in employment in this country without INS approval after January 1, 1977, and before he filed his application for adjustment of the status of his residency.2 Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1979), provides that the Attorney General may, in his discretion and pursuant to such regulations as he may prescribe, adjust the status of a non-immigrant alien to that of permanent resident if the alien applies for such adjustment and is currently eligible to receive an immigration visa. 8 U.S.C. § 1255(a). Although Lukaszuk apparently satisfied these requirements, paragraph (c) of section 245 states that the provisions of paragraph (a) are not applicable to "an alien ... who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status." 8 U.S.C. § 1255(c)(2).3
An alien who is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255(c) generally must return to his or her country of origin in order to apply for a visa entitling him or her to permanent residency status in the United States. 22 C.F.R. § 42.110 (1980). However, if the alien is a refugee, an immediate relative (spouse, child under the age of 21, or parent) of an American citizen, or is entitled to first or second preference status,4 she is eligible for "stateside criteria processing" pursuant to regulations promulgated by the Secretary. 22 C.F.R. § 42.110-2.2 et seq. (1979). Aliens who qualify for stateside criteria processing can apply to American Consular offices in Canada for immigrant visas entitling them to permanent residency in the United States. American consuls in Canada may elect to process applications of aliens who do not otherwise qualify for stateside criteria processing at their discretion depending upon the workload at the consul. 22 C.F.R. § 42.110-2.32. An alien may also qualify for stateside criteria processing by seeking asylum in this country.
Lukaszuk, who has been accorded sixth preference status and is thereby ineligible for stateside criteria processing pursuant to 22 C.F.R. § 42.110-2.22(c), has been refused discretionary processing by at least two American consuls in Canada because of the heavy workload involved in processing refugees, immediate relatives of American citizens, and aliens classified in the first and second preferences. He has thus far refused to apply for asylum in this country out of fear for his family in Poland should the Polish government learn of this application. Thus, Lukaszuk is foreclosed from obtaining an adjustment of his status to that of a permanent resident unless he either seeks asylum, returns to Poland as his country of origin and makes his application at the American consul in that country,5 or until such time as an American consul in Canada chooses to exercise its discretion and process his application for permanent residency.
Lukaszuk contends that the regulations relating to stateside criteria processing are unconstitutional on both due process and equal protection grounds6 because they arbitrarily extend the option of stateside criteria processing to certain categories of aliens while denying that option to others. He seeks a declaration that the regulations are unconstitutional and a writ of mandamus directing the Secretary to make stateside criteria processing available to all aliens who have been issued an approved preference petition in accordance with 8 U.S.C. § 1153(a).
As a threshold matter, the Secretary contends that the exercise of federal jurisdiction would be premature in the instant case because Lukaszuk has not exhausted the administrative remedies available to challenge the finding that he is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255. The Secretary also maintains that there is no case or controversy at the present time since Lukaszuk has not been aggrieved by agency action either by the issuance of a final deportation order or the denial of asylum. However, Lukaszuk concedes for the purposes of this case that he is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255(c) so that it would be fruitless for him to avail himself of the administrative remedies afforded for the purpose of challenging that finding at this time. In such circumstances, there is no requirement that he exhaust his administrative remedies before invoking the jurisdiction of this Court. Continental Can Company v. Marshall, 603 F.2d 590, 597 (7th Cir. 1979). In the Court's view, there is a line dispute between the parties at this time with respect to the validity of the stateside criteria processing regulations, and Lukaszuk has a sufficient stake in the outcome of the controversy to challenge the regulations as applied to persons in his position. He need not wait until he is finally deported or denied asylum in order to litigate the constitutionality of the Secretary's regulations.7 Accordingly, we proceed to the merits of the case at bar.
The Supreme Court has long recognized the limited scope of judicial inquiry in matters involving Congressional or Executive action in the immigration area. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 77-84, 96 S.Ct. 1883, 1890-93, 48 L.Ed.2d 478 (1976); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). As the Supreme Court stated in Kleindienst v. Mandel, supra:
The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.
408 U.S. at 766, 92 S.Ct. at 2583. Courts have been particularly reluctant to interfere in the visa-issuing process as an area uniquely within the discretion of the Secretary or the Attorney General. Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978); Gomez v. Kissinger, 534...
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