Pasquini v. Morris, s. 81-5123

• Decision Date: 17 March 1983
• Docket Number: 81-5799,Nos. 81-5123,s. 81-5123
• Citation: 700 F.2d 658
• Parties: Mario PASQUINI, Petitioner-Appellant, v. Raymond MORRIS, as District Director, Immigration and Naturalization Service, Miami, Florida, Respondent-Appellee. Peter N. ZACHARAKIS, Petitioner-Appellant, v. Joseph HOWERTON, as District Director, Immigration and Naturalization Service, Miami, Florida, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 658

700 F.2d 658

Mario PASQUINI, Petitioner-Appellant, v. Raymond MORRIS, as District Director, Immigration and Naturalization Service, Miami, Florida,

Respondent-Appellee.

Peter N. ZACHARAKIS, Petitioner-Appellant, v. Joseph HOWERTON, as District Director, Immigration and Naturalization Service, Miami, Florida, Respondent-Appellee.

Nos. 81-5123, 81-5799.

United States Court of Appeals Eleventh Circuit.

March 17, 1983.

James G. Roth, Walters, Costanzo, Miller & Russell, Miami, Fla., for petitioners-appellants.

Patricia D. Kenny, Asst. U.S. Atty., Miami, Fla., for respondents-appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

Peter N. Zacharakis appeals a judgment by the district court denying his petition for a review of a denial of a deferred action by the Immigration and Naturalization Service (INS) on the ground that internal operating instruction (O.I.) 103.1(a)(1)(ii) conferred no substantive rights on aliens. This case has been consolidated with that of Mario Pasquini, who appeals the order of the district court denying his petition for a writ of habeas corpus seeking review of the INS's decision to deny Pasquini's application for a deferred action status pursuant to O.I. 103.1(a)(1)(ii).

Both Pasquini and Zacharakis concede that they are aliens subject to deportation under the Immigration and Naturalization Act. They, however, contend that the INS's O.I. 103.1(a)(1)(ii) confers substantive rights on aliens who seek inclusion within the non-priority, deferred action status so that failure of an INS district director to comply with the instruction is a denial of the aliens' substantive rights. We hold that O.I. 103.1(a)(1)(ii), is for the convenience of the INS and does not have the force and effect of law. Therefore, the instruction cannot confer substantive rights upon aliens. We affirm the decision of the district court, 517 F.Supp. 1026 in denying Pasquini's writ of habeas corpus and Zacharakis's review of his denial of deferred action status.

FACTS

Zacharakis left his native Greece as a child and lived in the United States until January, 1962, when he returned to Greece. He reentered the United States without inspection in December of that same year. The INS ordered Zacharakis deported in October, 1963. He failed to surrender for deportation; instead, he married a United States citizen in February of 1964. He reopened the deportation proceedings, claiming that as a result of his marriage he was eligible for adjustment of status under 8 U.S.C.A. Sec. 1255 on the basis of a visa petition filed by his wife. A hearing was scheduled, but Zacharakis failed to appear. In September, 1964, his first wife withdrew her visa petition, and Zacharakis was deported to Greece in January, 1965.

While being detained for interrogation at the Canadian border, Zacharakis leaped from a window and reentered the United States without inspection in March of 1965. He was thereafter charged with a violation of 8 U.S.C.A. Sec. 1326, which makes it a felony for any alien who has been deported to thereafter enter or attempt to enter the United States without making application for admission. Upon capture, Zacharakis pleaded guilty, and the court sentenced him to a term of three months.

After a hearing, Zacharakis was again deported to Greece in September, 1965. By deserting from his position as a ship's crew member, he again reentered the United States without inspection in April, 1967. Upon being apprehended in November of 1968, Zacharakis was convicted of evading or attempting to evade the immigration laws by appearing under an assumed or fictitious name in violation of 18 U.S.C.A. Sec. 1546. The court sentenced him to two years imprisonment.

Upon his release on bond in June, 1970, he filed an application seeking political asylum in the United States. The application for asylum was denied. His marriage to his first wife terminated. In 1972, while the application for asylum was pending, Zacharakis married a second wife. His second wife filed a visa petition in his behalf.

A deportation hearing arising from the 1967 entry was held. The INS again determined that Zacharakis was deportable. In lieu of the order of deportation, however, Zacharakis requested and received the option of voluntary departure without expense to the government on or before July, 1975. He obtained extensions of time delaying his departure from the United States, the last of these extensions expiring in April, 1977. His application for waiver on grounds of excludability was denied in October of that year. Zacharakis was then advised by letter that arrangements had been made for his departure to Greece on August 11, 1978. He was requested to reappear on that date, ready for the scheduled departure. Zacharakis did not appear. He was apprehended in October, 1980.

Zacharakis applied to the district director for a stay of deportation and requested deferred action status. Discretionary "deferred action," pursuant to the INS's unpublished O.I. 103.1(a)(1)(ii), advises district directors that deferred action status be granted in cases where "adverse action would be unconscionable because of the existence of appealing humanitarian factors." The district director denied the application and request. Zacharakis sought habeas corpus relief in the district court seeking release from confinement, stay of deportation, and review of his denial of deferred action. The district court denied his petition for review of his denial of deferred action status. It is from the district court decision that Zacharakis appeals.

Mario Pasquini was born in Italy. He left that country in 1956, eventually settling in Freeport, Grand Bahamas, in 1963. He later married a United States citizen. In 1971, he was arrested in the Bahamas for possession of marijuana, and fined $600. Pasquini, his wife, and his children relocated in the United States, opening an antique shop in Miami, Florida. Pasquini came to this country under a B-2 visa. He left the country on a buying trip, returning in July, 1974. In order to reenter the United States, Pasquini used the documents and identification of another person.

A hearing was held in January, 1976, and Pasquini was found deportable under 8 U.S.C.A. Secs. 1251(a)(2) and 1251(a)(11), by reason of his marijuana conviction and his entry into the country without inspection. Pasquini's application for adjustment of his status to permanent residency, based upon his marriage to a United States citizen, was denied. Additionally, this decision was appealed to the Board of Immigration Appeals, where the Board held that Pasquini was deportable under section 1251(a)(11) and statutorially ineligible for adjustment of status under section 245 of the Immigration and Nationality Act.

Pasquini sought review in the Fifth Circuit. The Fifth Circuit affirmed the order of the Board, finding Pasquini excludable. He was ordered to appear on September 27, 1977, for deportation to Italy. Instead of reporting, he filed a request for deferred action status and stay of deportation. The district director of the INS denied this request. Pasquini then filed a complaint and request for a temporary restraining order suspending his deportation. The district court denied his requests for the temporary restraining order and preliminary injunction. In December, 1977, Pasquini filed a second application for stay of deportation and request for non-priority status. These requests were also denied. The district court dismissed the complaints for injunctive relief, finding that Pasquini was entitled to no relief. Pasquini requested permission to reapply for admission to the United States; the district director also denied this request in July, 1978.

In April, 1978, after his marriage had terminated, Pasquini was arrested on an outstanding deportation order and deported to Italy. He again reentered the United States without inspection in June, 1979. Following a hearing, Pasquini was found deportable and ordered to appear for deportation on July 7, 1980. He filed a second request for deferred action status and an application for stay of deportation. As a basis for his petition for deferred action, Pasquini asserted that he was the sole emotional and financial support for his ex-wife The district director denied the request for deferred action and the application for stay of deportation on June 24, 1980. On June 26, 1980, Pasquini petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus. In January, 1981, the court denied the petition. This appeal followed.

and small child, both American citizens. Since his presence in the United States provided financial and emotional security to his daughter in her formative years, Pasquini contends that there existed in his case certain "appealing humanitarian factors," such as would trigger the granting of deferred action status under O.I. 103.1(a)(1)(ii).

The issue we are called upon to decide is whether O.I. 103.1(a)(1)(ii), indicates that INS district directors "shall" grant deferred action status where certain "appealing humanitarian factors" exist, confers upon aliens a substantive right to receive deferred action status when such factors are present.

DISCUSSION

Internal operating instruction 103.1(a)(1)(ii) involves the action that a district director of the INS may make when confronted with a petition for deferred action in a deportation case. Internal operating instruction 103.1(a)(1)(ii) states in part:

(ii) Deferred action. In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category. His recommendation shall be made to the regional commissioner concerned on Form G-312, which shall be signed...