Noel v. Chapman

• Decision Date: 03 January 1975
• Docket Number: No. 86,D,86
• Citation: 508 F.2d 1023
• Parties: Rodolphe NOEL et al., Plaintiffs-Appellants, v. Leonard H. CHAPMAN, as Commissioner of the Immigration and NaturalizationService and Sol Marks, as New York District Director of the United StatesImmigration and Naturalization Service, Defendants-Appellees. ocket 74-1447.
• Court: U.S. Court of Appeals — Second Circuit

Page 1023

508 F.2d 1023

Rodolphe NOEL et al., Plaintiffs-Appellants, v. Leonard H. CHAPMAN, as Commissioner of the Immigration and NaturalizationService and Sol Marks, as New York District

Director of the United StatesImmigration and Naturalization

Service, Defendants-Appellees.

No. 86, Docket 74-1447.

United States Court of Appeals, Second Circuit.

Argued Nov. 8, 1974.

Decided Jan. 3, 1975.

Leon Friedman, New York City (American Civil Liberties Union Foundation, New York City, Melvin L. Wulf, New York City, Pollack & Kramer, Brooklyn, N.Y., Fried, Fragomen & Del

Ray, New York City, Austin T. Fragomen, Jr., Martin, L. Rothstein, New York City, of counsel), for plaintiffs-appellants.

Lydia E. Morgan, Sp. Asst. U.S. Atty. (Paul J. Curran, U.S. Atty. for the Southern District of New York, Mary P. Maguire, Sp. Asst. U.S. Atty., of counsel), for defendants-appellees.

Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit judges.

MULLIGAN, Circuit Judge:

This is an appeal from on order of Hon. Lee P. Gagliardi, United States District Judge for the Southern District of New York, entered on February 8, 1974, denying the motion of the appellants for a preliminary injunction in accordance with his opinion of February 6, 1974. We affirm.

I

Rodolphe Noel is an alien and a native and citizen of Haiti. He was admitted to this country on May 24, 1969 as a non-immigrant visitor for pleasure. This status permitted him to stay here for two months. He did not make a timely departure but remained here illegally until he was apprehended by agents of the Immigration and Naturalization Service (INS) on June 15, 1972. Deportation proceedings were thereupon promptly commenced. At a hearing on June 27, 1972, Noel admitted that he was deportable and represented that he was willing and able to leave the country at his own expense. He was given until September 27, 1972 to depart voluntarily. He again failed to leave and a warrant of deportation issued on July 12, 1973. Noel was advised by letter to report on August 21, 1973 for deportation. Instead of reporting, Noel requested an extension of his time to depart for an indefinite period because, on April 13, 1973, he had married Emiris Noel, a lawful permanent resident of the United States. This marriage, he urged, had exempted him from the requirement of obtaining a labor certification before applying for an immigration visa. 8 U.S.C. 1182(a)(14). If an indefinite extension of voluntary departure were granted, Noel would, in effect, be allowed to remain in this country an additional period of as much as two years until a visa became available. The request was denied but deportation was stayed for seven days to permit the institution of court action.

Antoine Petit's position is like unto Noel's. He is an alien and a native and citizen of Haiti who was admitted here on August 4, 1970 as a visitor for pleasure for a two-month stay. He did not leave but rather obtained employment in violation of his non-immigrant status. Londono v. INS, 433 F.2d 635 (2d Cir. 1970) (per curiam). He was apprehended on June 7, 1973. Deportation proceedings were promptly commenced, and, at his hearing on June 8, 1973, Petit admitted that he was deportable and requested that he be permitted to depart voluntarily. He was extended the privilege of voluntary departure until July 8th, 1973. Instead of departing, Petit married Yanick Petit on June 26, 1973. His bride had entered the United States a week before as a permanent resident immigrant. Petit also applied for an extension of voluntary departure until a visa became available. The District Director, by letter dated July 18th, 1973, denied the request and ordered his departure by July 27th, 1973. Petit did not leave and, on August 6, 1973, a warrant of deportation was issued, ordering his departure for Haiti on September 5, 1973.

On August 24, 1973, Noel and Petit and their brides commenced this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the policy of the INS as to extensions of voluntary departure for the relatives of resident aliens was unconstitutional, and further seeking a preliminary injunction enjoining the INS from deporting Noel and Petit. While initially commenced as a class action, the class claim has since been abandoned. Although technically the appeal here is from an order denying a preliminary injunction, the opinion of the court below finally determined the underlying legal and constitutional issues so that the case is ripe for plenary appellate review. Sound judicial administration requires us to avoid subsequent unnecessary proceedings in the district court. See FTC v. Cinderella Career & Finishing Schools, Inc., 131 U.S.App.D.C. 331, 404 F.2d 1308, 1311 (1968); Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966); 9 J. Moore, Federal Practice P110.25 (1) (2d ed. 1973).

II

It is undisputed that aliens who are the parents, children or spouses of an American citizen may enter the country without numerical limitation and need not obtain labor certification, regardless of where they are from. 8 U.S.C. 1151(b) and 1182(a)(14). Aliens who are the parents, children or spouse of a resident alien and who are not from the Western Hemisphere are also exempt from the labor certificate requirement, id. 1182(a)(14), and receive a special right of preference over others seeking a visa within the relevant quota limit of 170,000, id. 1153(a). However, if the aliens are from the Western Hemisphere and are parents, children or spouses of a resident alien, they are exempt from the labor certificate requirement, id. 1182(a)(14), but they receive no preference rights, I.e., they, along with all other Western Hemisphere aliens, may obtain visas subject to the 120,000 numerical quota, Act of Oct. 3, 1965, Pub.L. No. 89-236, 21(e), 79 Stat. 921. These differences in treatment between aliens' and citizens' relatives and between Eastern Hemisphere and Western Hemisphere alien relatives of resident aliens were specifically provided for by the 1965 major congressional amendments to the Immigration and Nationality Act which abolished the national origins quota system. Act of Oct. 3, 1965, supra. ¹

Since at least 1952, the law has provided that the privilege of voluntary departure may be granted to a deportable at the discretion of the Attorney General. Immigration and Nationality Act of 1952, ch. 5, 244, 66 Stat. 214, presently codified at 8 U.S.C. 1254. By regulation, the authority to extend the time within which to voluntarily depart is within the sole discretion of the District Director of the INS. 8 C.F.R. 244.2. INS policy between 1968 and June 1972 in the New York District had been more liberal than that elsewhere in the nation. Western Hemisphere aliens, such as Noel and Petit, who were in this country and married to permanent resident aliens had been routinely granted extended voluntary departure until an immigrant visa became available. However, on June 27, 1972, Congressman Rodino, Chairman of the House Judiciary Committee, advised the Commissioner of INS that hearings of his Subcommittee on Immigration and Nationality had indicated that the employment of illegal aliens in this country was unfavorably influencing the domestic job market and that routinely permitting them to remain in the United States to await visas was no longer justifiable. The Service informed all its District Directors that, as of July 31st, 1972, Western Hemisphere aliens should not routinely be granted extended departure time, but rather should be offered that privilege only in those cases where compelling circumstances warranted the relief. On April 10, 1973, the policy was liberalized to provide that the earlier New York policy granting extended departure would be applied to those aliens who were present in the United States and who had the requisite family status on or before April 10, 1973. Neither Noel nor Petit was married on April 10, 1973, and hence each is subject to deportation which has been voluntarily extended by the Service until this litigation is terminated.

Had Noel and Petit married American citizens they would not have been subject to numerical immigration limits. 8 U.S.C. 1151(b). The INS policy with respect to such aliens is to allow them the privilege of an extension of voluntary departure until they obtain visas, which involves a significantly shorter wait than in the case of an alien married to a resident alien who is subject to numerical limitations. Appellants contend that the INS policy is illegal. They claim (a) that there is nothing in the 1965 amendments to the law which requires the INS to distinguish between immediate family members of resident aliens, on the one hand, or of citizens, on the other, for the purpose of setting voluntary departure dates; (b) that the policy of the INS violates the equal protection concepts inherent in the due process clause of the fifth amendment, ² and constitutes an abuse of administrative discretion; and (c) that the policy was issued in violation of the Administrative Procedure Act, 5 U.S.C. 553. They seek to have the policy voided and to receive the benefits of the old policy under which they may await visas here along with the immediate relatives of American citizens.

III

The attack upon the constitutionality of the policy of the Service is bottomed upon the contention that alienage is a suspect classification, that, since the policy provides for disparate treatment of the alien spouses of citizens and resident aliens, and, furthermore, since the classification impinges upon the fundamental right of the family to remain intact, the policy must be subject to strict scrutiny. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).

The cases relied upon by appellants are not controlling here. In Graham v. Richardson, supra,...