McLat v. Longo
| Decision Date | 27 April 1976 |
| Docket Number | Civ. No. 1975/422. |
| Parties | Herminio McLAT and Bernadette Teresa Mclat, Plaintiffs, v. Dominic T. LONGO, as District Director of the Immigration and Naturalization Service, San Juan, Puerto Rico and Alexander Hanschen, as Supervisor of Immigration and Naturalization Service, Christiansted, St. Croix, U.S. Virgin Islands, Defendants. |
| Court | U.S. District Court — Virgin Islands |
Brian L. Masony, Legal Services of the Virgin Islands, Christiansted, St. Croix, V. I., for plaintiffs.
R. Eric Moore, Asst. U. S. Atty., Christiansted, St. Croix, V. I., for defendants.
ACTION FOR DECLARATORY JUDGMENT AND MANDATORY INJUNCTION
The detailed and complex immigration laws of the United States Act of June 27, 1952, 66 Stat. 163, as amended; 8 U.S.C. § 1101 et seq. were designed and drafted as much for the protection of American labor as for the maintenance of the racial status quo. While the odious qualitative restrictions and numerical limitations foundation of the 1917 and 1924 Immigration Acts (39 Stat. 874 and 43 Stat. 153) were eliminated by Public Law 89-236 Act of October 3, 1965, 79 Stat. 911, the basic quota-preference structure was retained, albeit in a transmuted hierarchical form. Despite the rigidity of the present order, however, ways exist to "best the system". One of these loopholes is the "special immigrant" status granted to certain types of aliens by 8 U.S.C. § 1101(a)(27). Another, and the one which concerns me here, is the "immediate relative" exception to the quota game. 8 U.S.C. § 1151(b).
Not everyone is fortunate enough to be the parent or child of a United States citizen. But anyone, with a little assistance from Cupid and/or Mammon, can become a citizen's spouse. In this motion by plaintiffs for summary judgment, therefore, I must be careful not to let my opinion of the bona fides of the plaintiffs' marriage dictate my decision. For such is a question of fact and Fed.R. Civ.P. 56 makes it clear that summary judgment may be granted only when there are no genuine issues as to any material fact and one of the parties is entitled to judgment as a matter of law.
Plaintiff Herminio McLat is a 69 year old Spanish-speaking (monolingual) citizen and resident of St. Croix, U.S. Virgin Islands. His "wife", Bernadette Teresa McLat, is a 19 year old English-speaking (monolingual) citizen and resident of Trinidad. On October 24, 1973, the plaintiffs were married to each other in a St. Croix ceremony. Less than a week after the vows were exchanged, the husband filed a petition with the United States Immigration and Naturalization Service (hereinafter "INS") in Christiansted, St. Croix, pursuant to Section 201(b) of the Immigration and Nationality Act 8 U.S.C. § 1151(b), requesting that his wife be classified as an "immediate relative" of a United States citizen as a first step towards her securing immigration to the United States.
Acting pursuant to the authority conferred upon them by 8 C.F.R. § 103.2(b)(1), several Immigration and Naturalization Service investigators visited the McLat home on various occasions in order to ascertain whether or not there existed a bona fide marriage. Their investigation disclosed that the plaintiffs were not residing together. Moreover, INS's agents also discovered that Mrs. McLat was in violation of her nonimmigrant status (visitor for pleasure) in that she had accepted unauthorized employment as a cashier at one of the local supermarkets. Inasmuch as the latter disclosure revealed a violation which could subject Mrs. McLat to almost certain deportation, she left St. Croix for Trinidad sometime in April of 1974 and has remained there ever since.
As a result of the above-described "evidence" uncovered by the investigating team, INS's District Director, a Mr. Dominic T. Longo, determined that no bona fide marital relationship had existed between Herminio and Bernadette McLat. Accordingly, he denied plaintiff Herminio McLat's petition on July 31, 1974. At that same time, however, Longo also informed McLat that he could file a new petition in the future if supported by evidence sufficient to overcome the reasons for the instant denial — e. g., vast differences in ages, language barrier and non-cohabitation. Longo's determination was immediately appealed but the Board of Immigration Appeals, on April 9, 1975, affirmed the District Director's decision.
Having exhausted their administrative remedies, plaintiffs filed suit on May 22, 1975 for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 1361 and 2201 and 5 U.S.C. §§ 701-706. Specifically, they seek this Court's assistance in (1) issuing a preliminary order directing the defendants, as officers and agents of INS, to immediately parole Bernadette McLat into the U.S. Virgin Islands and to temporarily classify her as an immediate relative of Herminio McLat; (2) conducting a full hearing into INS's procedures for handling 8 U.S.C. § 1154(a) petitions; (3) directing INS to reconsider its earlier denial of plaintiff's petition according to such guidelines as the Court, in its wisdom, would formulate; (4) forbidding INS from conducting unwarranted and illegal searches of plaintiff's residence during said reconsideration; and (5) granting plaintiffs a right to participate in any INS hearings on this matter.
Almost three months after the complaint was filed, defendants Longo and Hanschen finally filed a Fed.R. Civ.P. 12(b) motion to dismiss on the grounds that (1) service had not been made upon the proper governmental officials, to wit: the Attorney General of the United States; (2) certain indispensable parties had not been joined, to wit: the Attorney General of the United States and the Commissioner of INS; (3) subject-matter jurisdiction did not exist in that the United States had never waived its sovereign immunity with respect to such types of actions; and (4) the complaint failed to state a cause of action upon which relief could be granted inasmuch as nonresident aliens have no "right" to admission to the United States.
After listening to oral arguments and considering the memoranda submitted in support of and in opposition thereto, I entered an Order on September 29, 1975 denying defendants' motion. As to the first ground put forth by the INS officers, I ruled that Fed.R. Civ.P. 4(h) permitted the plaintiffs to amend their service of process, which they had done prior to the hearing. Moreover, INS's reliance upon Messenger v. United States, 231 F.2d 328 (2nd Cir. 1956) and Smith v. McNamara, 395 F.2d 896 (10th Cir. 1968) was misplaced in that those cases involved situations where the time for filing a new action had already tolled and there would have been material prejudice if an amendment of process had been allowed. Similarly, I rejected defendants' indispensable party contention on the authority of Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955); Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956), and Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961) and 8 C.F.R. §§ 103.2 — 103.4. Next, I considered their third argument to be a make-weight given plaintiffs' obvious reliance upon 28 U.S.C. §§ 1361 and 2201. See, in this regard Wong v. Hoy, 173 F.Supp. 855 (S.D.Cal. 1959) and Stokes v. United States Immigration and Naturalization Service, 393 F.Supp. 24 (S.D.N.Y.1975). And finally, while recognizing that nonresident aliens have no "right" to be admitted to the United States Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) and United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1949), I strongly felt that a District Court might always review an alleged abuse of discretion by INS's District Director in an action for declaratory judgment. Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956).
Within three weeks of the entry of the aforementioned Order, defendants Longo and Hanschen submitted their joint answer to the amended complaint. Therein, they admitted most of plaintiffs' allegations save for denying that their agents' investigations were "illegal, unconstitutional, and without authority", that they had committed any abuse of discretion, and that plaintiffs had suffered a denial of "procedural due process" on account of their actions. Additionally, they raised as an affirmative defense their earlier contention that the complaint herein failed to state a claim upon which relief may be granted.
In response thereto, plaintiffs filed their Rule 56 Motion for Summary Judgment. Although the defendants have never replied to the same in shocking disregard for the requirements of Fed.R. Civ.P. 56(e) and have never submitted opposing affidavits, I shall interpret their testimony under oath and their counsel's arguments at the December 12, 1975 hearing as satisfying the spirit (although not the letter) of the aforementioned Federal Rules provision. I do this not to encourage future disregard for established court rules and procedure or to sanction the present noncompliance, but solely because I believe that the underlying issues herein involved are important enough to warrant a disposition on the merits.
8 U.S.C. § 1151(a), the cornerstone of the present Immigration and Nationality Act, explicitly provides for a numerical limitation on the number of aliens (defined by Section 1101(a)(3) as being "any person not a citizen or national of the United States") who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted or conditionally permitted to enter the United States. Subsections (a) and (b) thereunder, however, exempt "immediate relatives" (children, spouses, and parents) from the quota figures. This exclusion, it must be understood, is neither automatic nor guaranteed. For every immigrant must overcome ...
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