Rahman v. McElroy

• Decision Date: 04 April 1995
• Docket Number: No. 95 Civ. 1209 (HB).,95 Civ. 1209 (HB).
• Citation: 884 F. Supp. 782
• Parties: Mostafizur RAHMAN, Tazin Mahnaj, Monowara Begum, Kazi Arif Khalil, Mohammed Ahamed and Md Alam, Plaintiffs, v. Edward McELROY, Acting District Director for the United States Immigration and Naturalization Service, U.S. Department of Justice, and United States Attorney General Janet Reno, Defendants.
• Court: U.S. District Court — Southern District of New York

884 F. Supp. 782

Mostafizur RAHMAN, Tazin Mahnaj, Monowara Begum, Kazi Arif Khalil, Mohammed Ahamed and Md Alam, Plaintiffs, v. Edward McELROY, Acting District Director for the United States Immigration and Naturalization Service, U.S. Department of Justice, and United States Attorney General Janet Reno, Defendants.

No. 95 Civ. 1209 (HB).

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

April 4, 1995.

Bruno J. Bembi, New York City (Hasan T. Choudhury, of counsel), for plaintiffs.

Mary Jo White, U.S. Atty., S.D.N.Y. Sp. Asst. U.S. Atty., New York City (F. James Loprest, Jr., of counsel), for defendants.

OPINION AND ORDER

BAER, District Judge.

Mostafizur Rahman, Tazin Mahnaj, Monowara Begum, Kazi Arif Khalil, Mohammed Ahamed and Md Alam (collectively "plaintiffs") brought this action against Edward McElroy, Acting District Director of the New York District of the Immigration and Naturalization Service ("INS"), the INS, and United States Attorney General Janet Reno (collectively, "defendants" or "Government") seeking injunctive relief. Plaintiffs are six natives of Bangladesh living in the United States who received notification from the United States Department of State ("State Department") that it had selected them for possible immigrant visas in its fiscal 1995 diversity visa "lottery." On February 21, 1994 plaintiffs moved for preliminary injunctive relief claiming that the INS acted arbitrarily in its scheduling of interviews in connection with their applications to become lawful permanent United States residents.

The defendants moved to dismiss the complaint, pursuant to Rule 12(b)(1), (6) and (7) of the Federal Rules of Civil Procedure, or, in the alternative, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The defendants argue, inter alia, that plaintiffs (1) point to no constitutionally protected property interest that the Government has infringed upon; (2) are not entitled to the extraordinary relief of mandamus; and (3) are not entitled to relief under the Administrative Procedure Act. On March 16, 1995, this court heard oral argument.

I. BACKGROUND

A. Plaintiffs' Allegations

Plaintiffs entered the 1994-95 "visa lottery" and received letters from the State Department telling them that they had been assigned case numbers for "possible visa issuance" under the diversity visa allocation system. Complaint ¶ 2, Exhibits A-E. The letters informed them that "only 55,000 visas were available under the Diversity Visa program" and that "110,000 principal applicants had been notified," and that they should follow the instructions of the National Visa Center "as quickly as possible to assure their chances of possible visa issuance." Id. & Exhibit A.

Each plaintiff applied immediately to the INS to adjust his status to that of lawful permanent resident. Id. ¶¶ 1, 3, 18. The INS then scheduled plaintiffs to be interviewed on their adjustment applications. Id. ¶ 2. According to the plaintiffs, visas available to Asian applicants would be exhausted before the dates on which the INS scheduled plaintiffs' interviews. Id. ¶ 2, 20, 21, Exhibits J, K. Moreover, plaintiffs point to other visa lottery winners who applied for adjustment after the plaintiffs, whom the State Department gave lower-ranking case numbers, and whom the INS nonetheless scheduled for adjustment interviews before plaintiffs. Id. ¶ 2, 18, 20 & Exhibits F, G, H, I.

Alleging that the INS had acted arbitrarily in scheduling their adjustment interviews, Complaint ¶ 2, and that "interviews were not scheduled ... on any ... rational basis," id. ¶ 21, plaintiffs applied to this Court for an order that the defendants show cause why plaintiffs should not be interviewed before March 1, 1995. On first blush the plaintiffs's argument seemed to be the "first come first served" concept that is so much a part of the American way of life. Consequently, after a conference on February 24, 1995, the Court issued the February 24, 1995 Order that plaintiffs' "visa rank numbers remain effective and valid for the purpose of adjustment of status ... assuming that the individual plaintiffs visa rank number was effective" as of the Order's date. I now conclude, after reviewing the facts and the complicated statutory scheme governing immigration, that injunctive relief must be denied and the complaint dismissed.

B. The Legal Background

1. The Law Governing Visa Issuance and the Diversity Immigrant Visa Program

Under section 221 of the Immigration and Nationality Act of 1952, as amended (the "INA"), 8 U.S.C. § 1101(a)(9) & (16), the Department of State, acting through the United States Consuls, has the power to issue visas. See 8 U.S.C. §§ 1104(a)(1), 1201(a). "It is important to note that a visa petition is not the same thing as a visa," Tongatapu Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984) (emphasis in original), and that an alien's filing of a visa petition, analogous to the applications filed by plaintiffs here, does not guarantee that a visa will be issued, nor does it grant the alien beneficiary any right to enter or remain in the United States. See id. at 1308; Joseph v. Landon, 679 F.2d 113, 115 (7th Cir.1982).

Section 203 of the INA, 8 U.S.C. § 1153(c)(1)(A), constitutes the relevant statute governing the diversity visa program. That statute requires the Attorney General to determine "for the most recent previous 5-fiscal-year period for which data are available," the total number of aliens by country of origin who were admitted to the United States or granted lawful permanent residency under the worldwide quota system in 8 U.S.C. § 1151(a) or as immediate relatives under 8 U.S.C. § 1151(b)(2). On the basis of these numbers, the Attorney General must divide the 55,000 lottery visa openings among "low-admission regions." See 8 U.S.C. § 1153(c)(1)(E) (Supp. IV 1992). This provision was designed to enhance immigration from underrepresented countries. Id. The percentage of visas made available under the diversity visa program to natives of any single foreign state was not to exceed seven percent, or 3,850. 8 U.S.C. § 1153(c)(1)(E)(v).

An alien from a "low-admission region" who otherwise meets the programs qualifications may apply once yearly to the Department of State to register for a visa based on diversity. See 59 Fed.Reg. at 15303-4 (describing procedures for applying in 1994-95 fiscal year). Based upon the Attorney General's regional allocations for a given year, "immigrant visa numbers made available under the diversity program shall be issued to eligible qualified immigrants strictly in a random order established by the Secretary of State." 8 U.S.C. § 1153(e)(2). The randomness aspect of the State Department's assignment of visa eligibility has caused the program to be described as a "visa lottery." See 59 Fed.Reg. at 15303.

2. The Law Governing Adjustment of Immigration Status

Under 8 U.S.C. § 1255, otherwise illegal aliens may apply to adjust their status to become lawful permanent residents.

The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in her discretion ... to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). Because of the special benefit it confers upon an alien who would otherwise be required to depart the United States to apply for an immigrant visa, and then return, section 245 adjustment is considered to be "extraordinary relief." Randall v. Meese, 854 F.2d 472, 474 (D.C.Cir.1988) (quoting Jain v. INS, 612 F.2d 683, 687 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980)).

The regulations do not permit an alien denied adjustment to seek direct review in a district court, 8 C.F.R. § 245.2(a)(5)(ii), but rather, specifically allow the alien to "apply to an immigration judge for ... adjustment of status" during deportation proceedings. 8 C.F.R. § 242.17(a). If that proves unsuccessful, an alien may take an administrative appeal to the Board of Immigration Appeals, see 8 C.F.R. § 242.21, and, ultimately, seek judicial review in a circuit court of appeals pursuant to 8 U.S.C. § 1105a(a). Failure to seek such administrative review before challenging an adjustment denial in a district court constitutes a failure to exhaust administrative remedies. See, e.g. Augoustinakis v. United States INS at New York, N.Y., 693 F.Supp. 1554, 1555 (S.D.N.Y.1988). Plaintiffs have not begun to avail themselves of their administrative remedies, let alone exhaust them.

3. The Executive Branch's Plenary Power Over Admission to the United States

Upon close analysis it appears clear that judicial review in immigration matters is narrowly circumscribed. Reno v. Flores, ___ U.S. ___, ___, 113 S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977). Control over immigration "is a sovereign prerogative," Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 330, 74 L.Ed.2d 21 (1982), and immigration is an area that the Constitution largely entrusts to the political branches of government. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982); Harisiades v. Shaughnessy, 342 U.S. 580, 596-97, 72 S.Ct. 512, 522-23, 96 L.Ed. 586 (1952) ("the particular classes of aliens that shall be denied entry and the basis for determining such classification ... have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control"); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (19...