Ruston v. U.S. Dept. of State

• Decision Date: 19 October 1998
• Docket Number: No. LR-C-97-555.,LR-C-97-555.
• Citation: 29 F.Supp.2d 518
• Parties: Peter Andrew RUSTON, Philip Ruston, and Worldmaster, Inc., Plaintiffs, v. U.S. DEPARTMENT OF STATE; Madeline Albright, in her official capacity as Secretary of State; Immigration and Naturalization Service; and Doris Meissner, in her official capacity as Commissioner of the Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

Page 518

29 F.Supp.2d 518

Peter Andrew RUSTON, Philip Ruston, and Worldmaster, Inc., Plaintiffs, v. U.S. DEPARTMENT OF STATE; Madeline Albright, in her official capacity as Secretary of State; Immigration and Naturalization Service; and Doris Meissner, in her official capacity as Commissioner of the Immigration and Naturalization Service, Defendants.

No. LR-C-97-555.

United States District Court, E.D. Arkansas, Western Division.

October 19, 1998.

Roger C. Linde, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, LA, Robert M. Honea, Dawson & Terry, Fort Smith, AR, for Plaintiffs.

Alison Marie Igoe, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Gwendolyn Dewees Hodge and Richard M. Pence, Jr., U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR, for Defendants.

MEMORANDUM OPINION AND ORDER

SUSAN WEBBER WRIGHT, Chief Judge.

This is an immigration case. The plaintiffs (Peter and Philip Ruston and Worldmaster, Inc.) seek, among other things, injunctive relief requiring the defendants, the Department of State ("State Department") and the Immigration and Naturalization Service ("INS"), to rescind revocation of the Rustons' visas and issue new visas. Additionally, the plaintiffs seek attorney fees and other expenses under the Equal Access to Justice Act. The defendants filed a motion requesting dismissal for lack of subject matter jurisdiction [Docket No. 13] and the plaintiffs have responded [Docket Nos. 23, 27, 30]. The motion is ripe for review. After careful review, the Court finds that it lacks subject matter jurisdiction to hear this case and grants the defendants' motion to dismiss.

While the Court may consider matters outside the pleadings when considering a 12(b)(1) motion to dismiss, in this case, the Court will decide the issue of subject matter jurisdiction solely from the face of the plaintiffs' pleadings. See Osborn v. United States, 918 F.2d 724 (8th Cir.1990).

I. FACTUAL BACKGROUND

On December 16, 1996, Peter Ruston, an Australian, attempted to enter the United States. At a New York airport, INS officials informed him of exclusion proceedings against him and served him with notice to appear before an immigration judge on May 7, 1997. The INS officials informed Ruston that the exclusion proceedings had been initiated because he did not possess a valid visa, he obtained a visa by fraudulent methods, and he engaged in alien smuggling. This information took Ruston by surprise; he asserts that he has never misrepresented facts when applying for visas and that he has never smuggled aliens into the United States.

Ruston entered the United States on previous occasions, without incident, pursuant to a B-1 visa¹ issued by the American Consulate in Melbourne, Australia. He assumed that this visa was still in effect when he arrived at the airport on December 16th. Later he learned that the State Department had revoked the visa in May of 1996.

On his previous visits to the United States (pursuant to his then-active B-1 visa) Ruston conducted business for Worldmaster, Inc., an enterprise that created a training program for truck drivers. According to Ruston, the trucking industry in Australia needed improvement, and Worldmaster sought to gain American trucking industry know-how by sending Australian trainees to the United States. In order to accomplish the training program, Ruston applied for H-3 visas for Worldmaster trainees at the INS Service Center in Irving, Texas. The Texas Service Center approved the applications. However, the Melbourne Consulate, without explanation, withdrew approval of the H-3 visas. Ruston made numerous efforts, including freedom of information inquiries, to learn why the Consulate revoked his B-1 visa and refused to issue Worldmaster trainees H-3 visas, but his efforts proved fruitless.

Ruston appeared for the scheduled exclusion hearing at the United States Immigration Court in New York on May 7, 1997. However, the hearing did not proceed because the INS had not informed the Immigration Court about the hearing. Also in May, the State Department revoked Philip Ruston's visa without warning. Philip Ruston is the son of Peter Ruston and an employee of Worldmaster.

Despite the revocation of Ruston's B-1 visa and the pending exclusion proceedings against him, Worldmaster filed a petition seeking L-1 status² for Ruston. The petition for L-1 status was approved in June of 1997. During a scheduling hearing pursuant to the exclusion proceedings against Ruston; the INS learned that he had been approved for L-1 status. Consequently, the INS issued a notice of intent to revoke his L-1 status and, thereafter, a notice of revocation of L-1 status. Ruston has appealed revocation of his L-1 status to the Board of Immigration Appeals; the appeal is currently pending.

In December, 1997, the exclusion hearing, previously set for May, took place. At the hearing, Ruston informed the Court that the INS had issued him L-1 status. As a result, the court terminated the proceedings with prejudice "by agreement of the parties as the applicant was admitted as a B-1 nonimmigrant whose status was changed to L-1 classification by the [INS]."

The plaintiffs seek several remedies. First, they seek a writ of mandamus or mandatory injunction ordering the defendants to rescind revocation of the Rustons' B-1 visas and to declare the revoked visas valid. Second, they seek a mandatory injunction ordering the defendants to delete data base entries which would prevent the success of future applications made by the Rustons. Third, they seek a mandatary injunction ordering the State Department to cease all actions against the them and to comply with the notice requirements set forth in 22 C.F.R. § 41.122(b) in any future actions against the Rustons. Fourth, they seek rescission of revocation of Peter Ruston's L-1 status. Fifth they seek a declaratory judgment that the exclusion proceedings against Peter Ruston were improperly initiated and that the revocation of the Rustons' B-1 visas and Peter Ruston's L-1 status was improper. Sixth, they seek attorney fees and costs under the Equal Access to Justice Act.

II. STATUTORY BACKGROUND

The Immigration and Nationality Act of 1952 ("INA"), though modified over the years, remains the United States' primary immigration law. The Act charges the Attorney General with the administration and enforcement of immigration and naturalization laws, except for matters within the jurisdiction of the President and the Secretary of State.³ The Attorney General delegates administrative functions to the Commissioner of the Immigration and Naturalization Service ("INS").⁴ The Commissioner of the INS, in turn, delegates authority to officers of the INS. Thus, an official act of the INS carries the authority of the Attorney General.

The INA charges the Secretary of State with the administration and enforcement of the powers and duties of consular officers of the United States, except those powers and duties conferred upon consular officers relating to granting or refusing visas.⁵ United States Consuls in foreign countries possess broad discretion to grant, deny, and revoke visas.⁶

Until 1996, under the INA, the words "deportation," "exclusion," and "entry" had all-important meanings. Illegal aliens who had entered the country, or who had been paroled into the country, were subject to deportation procedures; and those who had not entered were subject to exclusion procedures. Judicial review for the two procedures differed. Deportation orders were appealable to United States Courts of Appeals, while exclusion orders were appealable only to the United States District Courts by writ of habeas corpus.⁷

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") and eliminated the terms deportation and exclusion by replacing them with a single term and a single procedure: removal.⁸ Most important to this case, the IIRIRA revamped judicial review for immigration proceedings. The Act provides United States Courts of Appeals exclusive jurisdiction to review final orders of removal.⁹ Additionally, a court of appeal "may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right."¹⁰

Generally, the IIRIRA's judicial review amendments became effective April 1, 1997.¹¹ However, the Act provided transitional rules governing judicial review of cases pending as of April 1, 1997.¹² The Act breaks these cases into two classes. The first class includes cases pending on April 1, 1997; where final orders of exclusion had been entered before October 30, 1996. For this class, the Act applies the "old" INA judicial review rules. The second classification includes cases pending on April 1, 1997; where final orders of exclusion had been entered on or after October 30, 1996. For this class, the Act applies "transitional" judicial review rules. As for cases initiated after April 1, 1997, the "new" IIRIRA judicial review rules apply. Finally, the IIRIRA provides:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.¹³

This provision applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings ...."¹⁴

III. DISCUSSION

The plaintiffs propose that this Court possesses subject matter jurisdiction to hear their claims under 28 U.S.C. § 1331; 8 U.S.C. § 1329; 28 U.S.C. 1361; and 28 U.S.C. § 2201. Additionally, the plaintiffs seeks an award of attorney fees and costs under the Equal Access to Justice Act. The Court will address the question of subject matter jurisdiction under each of the proposed st...