Malek-Marzban v. Immigration and Naturalization Service
| Decision Date | 29 June 1981 |
| Docket Number | MALEK-MARZBAN and B,No. 80-1779,80-1779 |
| Citation | 653 F.2d 113 |
| Parties | Malek Abdullahadry Malek-Marzban, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Edward J. Birrane, Jr., Baltimore, Md., for petitioners.
Margaret J. Perry, Dept. of Justice, Washington, D. C. (James P. Morris, Dept. of Justice, Washington, D. C., on brief), for respondent.
Before HAYNSWORTH, Senior Circuit Judge, MURNAGHAN, Circuit Judge, and RAMSEY *, District Judge.
The petitioners, husband and wife, are Iranian nationals who are subject to a valid deportation order. The time during which they could be permitted voluntarily to depart the United States was affected by the April 25, 1980 amendment of 8 C.F.R. § 244.1, one of several amendments promulgated by the INS in response to the taking of American hostages in Iran. The petitioners contend that § 244.1 is procedurally defective under the Administrative Procedure Act and unconstitutional under the equal protection clause of the Fifth Amendment. We find these contentions meritless, and we affirm the INS order and dismiss the petition.
On January 20, 1979 the petitioners entered the United States as nonimmigrant visitors for pleasure. Before their visas expired on July 12, 1979 they obtained an extension until January 12, 1980.
On November 4, 1979, Iranian militants occupied the United States Embassy in Tehran and took hostages. President Carter promptly made several responses, which included discontinuing oil purchases from Iran, declaring a national emergency, freezing all Iranian assets subject to the jurisdiction of the United States, delegating to the Attorney General and Secretary of State his authority to govern the entry of aliens into the United States, and ordering the Iranian embassy and consulate to return most of its diplomatic staff to Iran.
The Attorney General promulgated several regulations modifying the INS policy toward Iranian nationals who were in this country. On November 13, 1979, he promulgated 8 C.F.R. § 214.5, which requires all Iranian post-secondary school students to report to a local INS officer or campus representative and provide information about their residences and the maintenance of their nonimmigrant status. This regulation was later upheld in Narenji v. Civiletti, 617 F.2d 745 (D.C.Cir.1979).
On December 28, 1979 the petitioners applied for further extensions of their visas. An extension was granted until June 11, 1980.
On April 7, 1980 President Carter broke diplomatic relations with Iran. The INS then promulgated the amendment of 8 C.F.R. § 244.1. Prior to the amendment, § 244.1 provided that, after an alien has been ordered deported,
if the alien establishes that he is willing and has the immediate means with which to depart promptly from the United States, a special inquiry officer in his discretion may authorize the alien to depart voluntarily from the United States in lieu of deportation within such time as may be specified by the special inquiry officer when first authorizing voluntary departure, and under such conditions as the district director shall direct.
The amendment, published in the Federal Register on April 25, 1980 and immediately effective, added this sentence:
In the case of a national of Iran, the amount of time within which he/she may be granted to depart voluntarily by the special inquiry officer shall not exceed 15 days from the date the special inquiry officer renders his/her decision in the case.
On June 5, 1980, four days after their visas expired, the petitioners applied for another extension. The INS refused, but gave them until June 25, 1980 to depart voluntarily from the United States.
On July 24, 1980 the INS issued a show cause order, charging the petitioners with being deportable as aliens who had remained longer than was authorized. At a hearing before an immigration judge on August 15, 1980 they were found deportable. The judge allowed voluntary departure until August 30, 1980, the maximum fifteen days permitted by the amended § 244.1.
On August 25, 1980 the petitioners appealed to the Board of Immigration Appeals. The Board dismissed the appeal on October 7, 1980 but offered them voluntary departure for thirty days or any extension beyond that as the district director may grant.
On October 27, 1980 the petitioners asked the district director for a stay of the deportation order, but it was denied. The district director gave them an additional week, until November 14, 1980 for voluntary departure.
On November 6, 1980 the petitioners filed their petition for review with this court, thereby triggering an automatic stay of the deportation order.
The petitioners claim that § 244.1 is defective because it was not promulgated in compliance with 5 U.S.C.A. § 553. The claim fails because the amendment falls under two exceptions to the APA's rulemaking requirements. 1
Section 553(a)(1) provides that § 553 "applies ... except to the extent that there is involved ... a military or foreign affairs function of the United States." The involvement of foreign affairs in the amendment of § 244.1 is obvious and is stated concisely in the announcement of the amendment in the Federal Register:
Because of the Iranian Government's failure to resolve the international crisis it created by the unlawful detention of American citizens in the United States Embassy in Tehran, the President of the United States announced the break in diplomatic relations with that country on April 7, 1980. In further response to the international crisis it has been determined to expedite the departure of Iranians unlawfully present in the United States. Consequently, the Immigration and Naturalization Service will amend its...
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