Ramirez v. Immigration and Naturalization Service
| Decision Date | 21 January 1972 |
| Docket Number | No. 71 C 1613.,71 C 1613. |
| Citation | 338 F. Supp. 398 |
| Parties | Ofelia M. RAMIREZ, Plaintiff, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Richard Lowery, Shapiro & Small, Chicago, Ill., for plaintiff.
James Thompson, U. S. Atty., James K. Toohey, Asst. U. S. Atty., Chicago, Ill., for defendant.
Motion for Summary Judgment
Plaintiff is a citizen of the Philippines who is challenging a directive of the Immigration and Naturalization Service ordering her to depart the United States. In order to understand her present status and her assertions the history of her presence in this country from the time of her arrival must be traced.
On June 22, 1968, Ofelia Ramirez arrived from Manila, Philippines at Seattle, Washington as a non-immigrant visitor for pleasure with permission to stay in the United States until December 21, 1968. On July 17, 1968 she submitted an updated application for a Third Preference immigrant status to the District Director at Norfolk, Virginia on the basis that she held a teaching position in the Philippines and that she therefore qualified under the Third Preference requirement that the petitioner be a member of the professions. On September 19, 1968 her application for a Third Preference was denied by the United States Employment Service on the grounds that she had insufficient training and education to qualify for certification as a member of the teaching profession in the United States.
On December 16, 1968 the Plaintiff requested an extension of her non-immigrant visitor's visa to March 30, 1969 on the basis that her husband was on an extended business trip in the United States and that she therefore wanted to stay with him and that in addition she was undergoing treatment at the Mayo Clinic. The extension was granted.
On March 26, 1969 she requested a further extension to September 30, 1969 for the same reasons set forth in her earlier request. This extension was also allowed.
On May 5, 1969 the Immigration and Naturalization Service in Washington, D.C. denied Plaintiff's application for a Third Preference classification on the same basis as had the United States Employment Service.
On September 29, 1969 she applied for an extension of her visitor's visa to March 31, 1970 for the same reasons set forth in her two prior requests for extension. This third request was granted. On March 17, 1970 she applied for yet another extension of her non-immigrant tourist visa in order to continue to remain with her husband and also to spend the spring and summer months vacationing and undergoing physical treatment with her cousin Dr. Arive. This request was also granted.
On September 25, 1970 the Plaintiff applied for a change of non-immigrant status from that of tourist to that of student to extend until June of 1971. On February 19, 1971 her application was denied. On March 2, 1971 she was notified by the District Director of the Immigration and Naturalization Service that her change of status to student had been denied because she had failed to comply with non-immigrant regulations in that she had accepted employment and had failed to maintain her status as a bona fide non-immigrant by reason of her having become a declared immigrant with the intention of remaining in the United States permanently while awaiting the availability of a visa number. Plaintiff appealed the decision and the appeal was denied by the Regional Commissioner of the Immigration and Naturalization Service on June 2, 1971. Pursuant to the expiration of her tourist visa and her failure to obtain student status she was notified that she had until July 7, 1971 to depart from the United States.
On July 6, 1971 the Plaintiff filed a Complaint in this action seeking to have the orders of the Immigration and Naturalization Service by which she was denied non-immigrant student status and by which she was directed to depart from the United States reviewed on the grounds that the District Director and the Regional Commissioner had abused their discretionary power and had violated her right to due process. She also challenges, as an abuse of discretion and a violation of her equal protection rights, the Immigration Service's practice of allowing First, Second, Third and Fourth Preference holders to remain in the United States pending the granting of their visas while Fifth Preference holders from the Philippines, such as Plaintiff are required to await their visa numbers in their native country. The First through Seventh Preferences are listed at 8 U.S.C. § 1153(a) (1) through (7) respectively. The First, Second, Fourth and Fifth Preferences allot a certain number of preferential visas to relatives of United States Citizens. The Fifth Preference which Plaintiff claims, is based on the petition filed by her sister, who is a United States citizen. She has since died, a critical factor which will be discussed infra.
There are three conceivable alternatives, in Plaintiff's situation, that would justify her remaining in this country. The first would be an extension of her non-immigrant visitor for pleasure status. That avenue is presently foreclosed. It cannot be denied that the Immigration Service has been more than liberal in extending her visitor's visa on numerous occasions and that it is totally within their discretion to refuse to further extend such a visa. Quite plainly, absent other considerations, the Plaintiff could not contest the Service's authority to order her to leave. See Philippides v. Day, 283 U.S. 48, 51 S.Ct. 358, 75 L.Ed. 833 (1931); Si v. Boyd, 243 F.2d 203 (9th Cir. 1957); Fugiani v. Barber, 261 F.2d 709 (9th Cir. 1958). See also 8 U.S.C. §§ 1251(a) (2) and (a) (9).
The second alternative would be the granting of a change of Plaintiff's status from that of non-immigrant tourist to that of student. Plaintiff applied for this change on September 25, 1970 and her application was denied on February 19, 1971 based on the grounds that an alien must have maintained a lawful non-immigrant status to be eligible for a change from one type of non-immigrant status, such as tourist, to another type of non-immigrant status, such as student. Plaintiff had failed to maintain her non-immigrant status primarily because she had been unlawfully employed and because she was no longer a bona fide non-immigrant in that since her admission to the United States she had become an immigrant with the declared intention of remaining in the United States. Plaintiff now seeks relief from that administrative decision claiming that the refusal of the Immigration Service to grant her a change of status from tourist to student was an abuse of discretion. The only power of review in immigration cases that this Court has is limited to the determination of whether the District Director or the Regional Commissioner have abused their discretion in ordering the Plaintiff to leave the United States. Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir. 1971); Pizarro v. District Director of United States Immigration and Naturalization Service, 415 F.2d 481 (9th Cir. 1969). This Court discussed, at great length, the criteria used to determine abuse of discretion especially in Third Preference cases in the recent case of Javier v. Immigration and Naturalization Service, 335 F.Supp. 1391 (N.D.Ill.1971).
In the case now before us Plaintiff undeniably violated a cardinal prohibition regarding the maintenance of lawful non-immigrant tourist status by accepting employment. (This ground alone is sufficient basis for a refusal to change non-immigrant status; all the more so in view of the other violations attributed to Plaintiff.) She claims that the violation was merely "technical" and that she simply sought to earn some additional funds to help defray the cost of her studies if and when she returned to school and that she merely was attempting to put her time to good...
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