Randall v. Meese, 87-5230

Citation854 F.2d 472
Decision Date16 August 1988
Docket NumberNo. 87-5230,87-5230
PartiesMargaret J. RANDALL, et al., Appellants, v. Edwin MEESE, III, Attorney General, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of columbia.

David Cole, with whom Michael Ratner, Walter J. Rockler, Cynthia M. Lewin and Michael Maggio, Washington, D.C., were on the brief for appellants.

Michael L. Martinez, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., * John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees. Michael J. Ryan and Royce C. Lamberth, * Asst. U.S. Attys., Washington, D.C., also entered appearances for appellees.

Ann H. Franke, Washington, D.C., was on the brief for amicus curiae American Ass'n of University Professors, et al. urging reversal.

Before MIKVA, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Dissenting opinion filed by Circuit Judge MIKVA.

RUTH BADER GINSBURG, Circuit Judge:

Plaintiff-appellant Margaret J. Randall is a noted writer and photographer; born in New York in 1936 and raised in this country, she lost her United States citizenship in 1966 when she declared her allegiance to Mexico. Her parents are citizens of the United States residing, since 1947, in Albuquerque, New Mexico; her four children are also United States citizens. Randall seeks an adjustment of her immigration status to that of a permanent resident so that she may again become a United States

citizen. She has so far been denied that relief by the Immigration and Naturalization Service (INS or Immigration Service). We hold that her resort to court is premature, and we therefore affirm the district court's judgment dismissing her complaint. The dismissal, we emphasize, is without prejudice to eventual renewal of Randall's claims, in a proper circuit, including her contention that her status should be adjusted as of October 2, 1985, the date the district director denied her application.

I. INTRODUCTION

Margaret Randall's pleas for authorization to remain in the United States permanently commenced in 1984; Immigration (McCarran-Walter) Act 1 prescriptions then in effect authorized the executive branch, if specified terms are met, to exclude aliens on ideological grounds. See 8 U.S.C. Sec. 1182(a)(28) (1982) (rendering excludable aliens who believe in communism or anarchism, write about those doctrines, or belong to an organization that promotes those doctrines); see generally Shapiro, Ideological Exclusions: Closing the Border to Political Dissidents, 100 HARV.L.REV. 930 (1987). The law of the United States, as ordered by Congress for 1988, has changed. It is now impermissible to deny a visa or an application for permanent resident status "because of any past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution." Foreign Relations Authorization Act, PUB.L.NO. 100-204, Sec. 901(a), 101 Stat. 1399, 1399-1400 (1987). 2

Randall's case is thus set in a time of transition. The government once opposed her application for permanent residency on the ground that her writings advocated the doctrines of world communism and therefore made her excludable under section 1182(a)(28). That ground is not currently available to the executive. See Allende v. Shultz, 845 F.2d 1111, 1121 (1st Cir.1988). It therefore appears that the large question initially raised--whether Margaret Randall could regain United States citizenship--is now reduced to the question--when can she regain it. 3

To render comprehensible the conundrum this appeal presents, we first describe the statutory and regulatory complex relevant to status adjustment applications, and then set out the significant facts and procedural history in Randall's case.

II. THE ADJUSTMENT OF STATUS REGIME

Before 1935, neither statute nor administrative practice permitted adjustment of the status of an alien already in the United States; to achieve reclassification from nonimmigrant to permanent resident status, the alien had to leave the country and, in the ordinary course, apply to a United States consular officer abroad for an immigrant visa. See 8 U.S.C. Sec. 202(a) (1934); Centeno v. Shultz, 817 F.2d 1212, 1214 (5th To reduce the hardship and inconvenience of this "depart and seek reentry" procedure, the Immigration Service devised a "pre-examination plan" which made accessible to some aliens a less expensive process: after screening by immigration officials here, the alien could travel briefly to Canada and there acquire from a United States consular officer the sought-after immigrant visa. See S.REP. 1515, 81st Cong., 2d Sess. 603 (1950); 8 C.F.R. Sec. 142 (Supp.1941). If the alien, once in Canada, failed to pass the consular officer's checks, he would be sent back to the United States, pursuant to an agreement with Canada; promptly upon his return, deportation proceedings would be instituted against him. See 8 C.F.R. Sec. 142.18 (Supp.1941). The alien would have no opportunity, in those proceedings, to gain a status adjustment.

Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 696, 98 L.Ed.2d 648 (1988) (adhering to position that "decisions of United States consuls on visa matters are nonreviewable by the courts").

In 1952, in the new Immigration and Nationality Act, Congress itself addressed the matter. Section 245 of the Act, codified at 8 U.S.C. Sec. 1255, enabled an alien, under specified conditions, to obtain an immigrant visa "without the necessity of leaving the United States." See H.R.REP. 2096, 82d Cong., 2d Sess. 128 (1952), U.S.Code Cong. & Admin.News 1952, p. 1653. The prescription currently in force permits

[t]he status of an alien who was inspected and admitted or paroled into the United States [to] be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, 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. Sec. 1255(a); see Jain v. INS, 612 F.2d 683, 687 (2d Cir.1979) ("adjustment of status under 245" is "extraordinary relief," therefore burden is on alien to persuade Immigration Service "to exercise its discretion favorably"), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); see also T. ALEINIKOFF & D. MARTIN, IMMIGRATION PROCESS AND POLICY 282-83, 288-92 (1985).

By thus authorizing the Attorney General (and, under his delegation, Immigration Service officers) to grant permanent resident status, Congress afforded aliens present in this country on nonimmigrant visas a marked advantage over the alien who could receive an immigrant visa only from a consular officer abroad. The alien in the United States, through the regulations implementing the congressional prescription, now has dual opportunities to seek permanent resident status. First, he may apply for relief to "the district director having jurisdiction over his place of residence." 8 C.F.R. Sec. 245.2(a)(1). Should the alien fail to gain adjustment at this stage, he is entitled to a de novo review of his application in the context of deportation proceedings. See 8 C.F.R. Secs. 242.17(a), 245.2(a)(5)(ii).

Proceedings before the district director may be summary. Service instructions state:

Unless a case involves complex questions of fact or law, the adjudicator shall complete an interview of an individual or family group within a period of 15-30 minutes. In no event may an interview exceed 30 minutes without the authority of a supervisory immigration examiner.

INS Operating Instructions 245.36, reprinted in 4 C. GORDON & H. ROSENFELD, IMMIGRATION LAW AND PROCEDURE at 25-251 (1987). Reflecting the abbreviated course this first process may take, and the prospect of a second, closer look, the regulations preclude a direct administrative appeal from a district director's denial of a status adjustment application. 8 C.F.R. Sec. 245.2(a)(5)(ii).

Unlike the alien of an earlier day whose sole recourse was to a consular officer abroad, however, the alien in the United States seeking status adjustment today may obtain full consideration of his application

in deportation proceedings. See 8 C.F.R. Secs. 242.17(a), 245.2(a)(5)(ii); see also Jain v. INS, 612 F.2d at 689 (finding "without merit" argument that alien seeking status adjustment "was denied due process because he was unable to appeal [district director's] denial of his ... application directly and could only do so in the context of deportation proceedings"). At this stage, the alien is accorded a plenary hearing; he has the right to be represented by counsel, to introduce evidence, and to cross-examine. 8 U.S.C. Sec. 1252(b); 8 C.F.R. Sec. 242.16. If the immigration judge rules against the alien, he may appeal to the Board of Immigration Appeals, 8 C.F.R. Secs. 236.7, 242.21, and thereafter, by prescription of the Act itself, to a court of appeals. 8 U.S.C. Sec. 1105a(a). Of prime significance to our resolution of this appeal, the statute sets the venue of a judicial review petition in "the judicial circuit in which the administrative proceedings before a special inquiry officer were conducted ... or in the judicial circuit wherein is the residence ... of the petitioner, but not in more than one circuit[.]" 8 U.S.C. Sec. 1105a(a)(2).

III. FACTS AND PROCEDURAL BACKGROUND

Appellant Randall left the United States in 1961 and continued to reside abroad until 1984. She lived first in Mexico and became a citizen of that country; in 1969 she moved to Cuba and in 1980, to...

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