Martinez v. Bell

• Citation: 468 F. Supp. 719
• Decision Date: 03 May 1979
• Docket Number: No. 77 Civ. 5964 (GLG).,77 Civ. 5964 (GLG).
• Parties: Janet Gilda MARTINEZ, an infant, by her mother, Maria J. Rodriguez-Sanchez, and Frank Martin Perrault, an infant, by his father, Frantz E. Perrault, et al., Plaintiffs, v. Griffin BELL, Individually, and as Attorney General of the United States, Cyrus Vance, Individually, and as Secretary of State of the United States, Barbara N. Watson, Individually, and as Administrator of the Bureau of Security and Consular Affairs, Department of State, Julio Arias, Individually, and as Director of Visa Office, Bureau of Security and Consular Affairs, Department of State, Vernon McAninch and Elizabeth J. Harper, are both sued Individually, and as Consuls of the United States of America, Mexico, D.F., Mexico, and Montreal, Canada, respectively, Leonel J. Castillo, Individually, and as Commissioner of Immigration and Naturalization Service, Mario Noto, Individually, and as Deputy Commissioner of Immigration and Naturalization Service, and George Vician, Jr., Individually, and as District Director of Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Southern District of New York

468 F. Supp. 719

Janet Gilda MARTINEZ, an infant, by her mother, Maria J. Rodriguez-Sanchez, and Frank Martin Perrault, an infant, by his father, Frantz E. Perrault, et al., Plaintiffs, v. Griffin BELL, Individually, and as Attorney General of the United States, Cyrus Vance, Individually, and as Secretary of State of the United States, Barbara N. Watson, Individually, and as Administrator of the Bureau of Security and Consular Affairs, Department of State, Julio Arias, Individually, and as Director of Visa Office, Bureau of Security and Consular Affairs, Department of State, Vernon McAninch and Elizabeth J. Harper, are both sued Individually, and as Consuls of the United States of America, Mexico, D.F., Mexico, and Montreal, Canada, respectively, Leonel J. Castillo, Individually, and as Commissioner of Immigration and Naturalization Service, Mario Noto, Individually, and as Deputy Commissioner of Immigration and Naturalization Service, and George Vician, Jr., Individually, and as District Director of Immigration and Naturalization Service, Defendants.

No. 77 Civ. 5964 (GLG).

United States District Court, S. D. New York.

April 5, 1979.

Endorsement On Motion To Amend Decision And Judgment May 3, 1979.

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Morton B. Dicker, The Legal Aid Society, New York City, for plaintiffs, by Julius C. Biervliet, New York City, of counsel.

Robert B. Fiske, Jr., U.S. Atty., New York City, for defendants, by Thomas H. Belote, Asst. U.S. Atty., New York City.

OPINION

GOETTEL, District Judge.

In this action for declaratory and injunctive relief, the plaintiffs, American citizen children represented by their alien parents, seek to have declared unconstitutional section 212(a)(14) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1182(a)(14), as amended by Pub.L. No. 94-571, 90 Stat. 2705 (October 20, 1976), and to enjoin its enforcement. The plaintiffs also seek an injunction directing the defendants to afford to their alien parents whatever permanent status or priority dates on the consular waiting lists necessary for those parents to become legal permanent residents of the United States. The defendants have now moved to dismiss the complaint, alleging lack of subject matter jurisdiction, failure to exhaust administrative remedies, and failure to state a claim upon which relief can be granted. The plaintiffs have cross-moved for summary judgment.

The plaintiffs in this action, all of whom are minors, were born in the United States between 1965 and 1977 and are citizens by reason of birth. U.S.Const. amend. XIV, § 1. Their parents are natives and citizens of independent countries in the Western Hemisphere who wish to obtain permanent resident status in the United States.

Under the terms of section 212(a)(14) of the Act an alien who wishes to enter the United States for the purpose of performing skilled or unskilled labor must obtain a certificate from the Secretary of Labor prior to admission. Until January 1, 1977, however, an exemption to the labor certification rule existed for parents from the Western Hemisphere of citizen children.¹ Upon establishment of entitlement under this section (by filing the appropriate forms), parents of such children would receive an exemption from the certification requirement and would be given a priority status on the consular waiting lists.

The exemption for Western Hemisphere parents of citizen children was repealed by Congress on October 20, 1976. Pub.L. No. 94-571, 90 Stat. 2705 (effective January 1, 1977).² Under the Act as amended, parents of a citizen child had to establish their entitlement to the exemption prior to January 1, 1977, or they would lose their privilege to this Western Hemisphere exemption and to the accompanying priority date.

The parents of the plaintiffs in the instant action all seemingly would have qualified for the exemption under section 212(a)(14) of the Act prior to January 1, 1977. Only two of them, however, allege that they took the necessary step of filing a form FS-497A with the American Consulate in the country of their origin so as to establish their entitlement to the exemption prior to the effective date of the amendment. These two, Rodriguez, parents of Martinez, and Perrault, claim that their forms were mailed prior to the effective date, although they were not received until after January 1. The defendants dispute these claims. The other plaintiffs' parents admittedly did not file the form.

The plaintiffs assert that they each have an "inborn" and "inalienable" right under section 212(a)(14) to have confirmed priority dates set for their parents, despite the failure to establish entitlements while the act was in force, and that no legislative change could strip them of these rights. In the alternative, they argue that the amendment to section 212(a)(14) is invalid under the Equal Protection Clause of the Fifth Amendment.

I

Jurisdiction in this action is premised upon several provisions, particularly section 279 of the Act, 8 U.S.C. § 1329, and on 28 U.S.C. §§ 1331 and 1361.³

Section 1361 provides jurisdictional for the issuance of a writ of mandamus. For such writ to be issued, it is necessary for a court to find:

"(1) a clear right in the plaintiff to the relief sought;

(2) a plainly defined and preemptory duty on the part of the defendant to do the act in question; and

(3) no other adequate remedy available."

Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973). See Hsieh v. Kiley, 569 F.2d 1179 (2d Cir. 1978); Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11 (3d Cir. 1975). For jurisdiction to lie under this provision there must be some ministerial, non-discretionary duty which a defendant has failed to perform.

These standards have not been met in this case. Plaintiffs seek to compel the defendants either to issue a visa or to grant a priority date to enable their parents to obtain permanent resident status in the United States. The decision to issue a visa, however, is that type of discretionary conduct not within the scope of mandamus jurisdiction.⁴ As the plaintiffs are owed no duty "so plainly prescribed as to be free from doubt," Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), rev'd on other grounds, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), mandamus jurisdiction is lacking. see Hsieh v. Kiley, supra.

The plaintiffs next allege that jurisdiction may be based on section 279 of the Act, 8 U.S.C. § 1329. Section 279 provides district courts with jurisdiction over all civil and criminal actions "arising under any of the provisions of this subchapter II." Since section 212(a)(14) is contained in subchapter II of the Act, the plaintiffs assert that this Court has jurisdiction to review the constitutionality of it.

The defendants challenge this assertion. They contend that what is really being attacked by the plaintiffs is not the constitutionality of section 212(a)(14) but rather the authority of the Secretary of State pursuant to section 104(a) of the Act to give instructions and establish regulations relating to consular waiting lists and the granting of priority dates for applicants.⁵ Since section 104(a) is contained in subchapter I of the Act, the defendants contend that there is no jurisdiction under section 279. In the alternative they assert that since the relief sought by the plaintiffs would interfere with the visa issuing process, the established doctrine of consular non-reviewability serves as a bar to this Court's jurisdiction. See Gomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976).

It seems apparent that if the plaintiffs were challenging the authority of the Secretary of State under section 104(a) to promulgate rules and regulations for the enforcement of the provisions of the Act (in this case to enforce section 212(a)(14)), jurisdiction would not lie. This, however, is not the case. What is challenged in the instant action is not the Secretary of State's authority, or the rules and regulations themselves, but rather the constitutionality of the underlying provisions which such rules and regulations are intended to enforce. Since it is the constitutionality of section 212(a)(14) which is being tested, and since that section is within subsection II of the Act, jurisdiction must exist under section 279.

The defendants nonetheless assert that the doctrine of consular non-reviewability bars the relief sought by the plaintiffs (which defendants characterize as an order to compel a United States Consul to grant visas and immigrant status to the alien parent). There is authority for the doctrine that "the judiciary will not interfere with the visa issuing process." Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Hsieh v. Kiley, 569 F.2d at 1181; Gomez v. Kissinger, 534 F.2d at 518; Hitai v. I. N. S., 343 F.2d 466 (2d Cir. 1965). Thus it is not within the jurisdiction of this Court to review a consular or Immigration and Naturalization Service decision whether to issue a visa (as was noted in regard to mandamus jurisdiction), nor may the Court direct such officials to issue a visa or grant resident alien status to any individual. See, e. g., Ubiera v. Bell, 463 F.Supp. 181 (S.D.N.Y.1978). The Court may, however, without violating the consular non-reviewability doctrine, examine the constitutionality of the statute employed by the Secretary in exercising his discretion. As was noted in Sovich v. Esperdy, 319 F.2d 21, 26-27 (2d Cir. 1963), "for the courts to rule upon that issue is not an intrusion into the Secretary's discretion. It is rather an interpretation of the statutory prerequisites to any proper exercise of his discretion." See Kovac v. I. N. S., 407 F.2d 102 (9th Cir. 1969); Application of Maringolo, 303 F.Supp. 1389 (S.D.N.Y.1969). Accordingly, this Court may test the constitutionality of...