Shamsian v. Ilchert

• Decision Date: 12 January 1982
• Docket Number: No. C-80-2808 RHS,C-80-2809 RHS,C-80-4244 RHS and C-80-4344 RHS.,C-80-2808 RHS
• Citation: 534 F. Supp. 178
• Parties: Mehrzad and Fariba SHAMSIAN, Plaintiffs, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant. Farzaneh and Zabiholah SADIGATFAR, Plaintiffs, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant. Afsaneh BAGHAYI, Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant. Nahid SHAHAMIRI, Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.
• Court: U.S. District Court — Northern District of California

534 F. Supp. 178

Mehrzad and Fariba SHAMSIAN, Plaintiffs, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.

Farzaneh and Zabiholah SADIGATFAR, Plaintiffs, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.

Afsaneh BAGHAYI, Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.

Nahid SHAHAMIRI, Plaintiff, v. David N. ILCHERT, District Director, Immigration and Naturalization Service, Defendant.

Nos. C-80-2808 RHS, C-80-2809 RHS, C-80-4244 RHS and C-80-4344 RHS.

United States District Court, N. D. California.

January 12, 1982.

COPYRIGHT MATERIAL OMITTED

Donald L. Unger, Simmons & Unger, Terry J. Helbush, Dana M. Keener, San Francisco, Cal., for plaintiffs.

Richard de St. Phalle, Asst. U. S. Atty., Dept. of Justice, San Francisco, Cal., for defendant.

OPINION

SCHNACKE, District Judge.

Plaintiffs are Iranian nationals whose applications for extensions of stay as non-immigrants, and for change of status, were denied during the "hostage crisis". They seek declaratory relief, challenging the exercise of discretion by the District Director of the Immigration and Naturalization Service (hereinafter, "INS") and the constitutional validity of the federal regulations upon which it was based. Of central concern is the authority of INS to consider United States foreign relations in carrying out its responsibility under the immigration laws.

All cases are related within Local Rule 205-2. Defendant moves to dismiss. Sadigatfar and Shamsian move for summary judgment. Under F.R.Civ.P., Rule 12(b), defendant's motions to dismiss shall be treated as motions for summary judgment. There is no material issue of fact. Defendant is entitled to judgment as a matter of law.

Facts

Baghayi and Shahamiri are Iranian nationals admitted to the United States temporarily as "non-immigrant students". Baghayi entered on August 18, 1978, and was authorized to stay until August 17, 1979. Shahamiri entered September 10, 1978, and was authorized to stay until September 9, 1979. Baghayi submitted an application for extension of stay (Form I-538) in July 1979; it was returned to her as insufficient. A sufficient application was not made until November 23, 1979, after she exceeded her stay. Shahamiri applied for an extension on October 7, 1979, and thus, also was out of status at the time of her application.

Mehrzad and Fariba Shamsian (hereinafter, "Shamsians") were admitted temporarily as "non-immigrant treaty investors" and authorized to stay until January 20, 1980. Farzaneh and Zabiholah Sadigatfar (hereinafter, "Sadigatfars") were admitted temporarily as "non-immigrant visitors for pleasure," but filed for adjustment in status to permanent resident ("immigrant") status on January 20, 1977, under § 245 of the Immigration and Naturalization Act of 1952 (8 U.S.C. § 1255). They were immigrants subject to numerical quotas and were not members of one of the six classes given preference for permanent visas. Since there were no available visas for non-preference, non-immigrants, their applications could not be approved, and they were allowed to stay pending eventual assignment of a visa number.

Each applicant had reason to believe his or her application would be approved. But on November 4, 1979, the United States Embassy in Tehran was invaded, and American citizens were held hostage. There then began a series of severe restrictions against Iranians in an effort to secure prompt release of the hostages. The District Director of INS, relying on an amendment to 8 C.F.R. § 214.1(c)¹ and 8 C.F.R. § 245.1(d)² denied all plaintiffs' applications. Plaintiffs assert three claims: (1) the District Director should have granted their applications prior to the time the Iranian regulations were in effect; (2) the regulations in question were promulgated without proper authority and thus, constitutionally invalid; and (3) the continued application of regulations after the hostage crisis had ended denies them equal protection under the Constitution. The various claims shall be treated in that order.

I.

A. Shahamiri and Baghayi, the Iranian students, first contend that the District Director's denial on December 5, 1979 of their applications was an abuse of discretion. Both Iranian students applied for extensions of their stay after they were out of status. As such, they violated the conditions of their stay, were in the United States unlawfully, and were deportable under 8 U.S.C. § 1251(a)(9). Ghajar v. INS, 652 F.2d 1347, 1348 (9th Cir. 1981).

The grant or denial of reinstatement or an extension of stay is within the discretion of the Attorney General and his delegate, the District Director. See, e.g., Johns v. Dept. of Justice, 653 F.2d 884 (5th Cir. 1981). This Court may not substitute its own discretion for that of the District Director. Johns v. Dept. of Justice, supra, at p. 891; Fugiani v. Barber, 261 F.2d 709, 711 (9th Cir. 1958). The District Director's decision must stand unless it so departs from an established pattern of treatment of others similarly situated without reason, as to be arbitrary and capricious, and an abuse of discretion. See Nicholas v. INS, 590 F.2d 802, 808 (9th Cir. 1979).

Plaintiffs present evidence which shows the INS commonly overlooked such technicalities as late applications. They contend his action was thus arbitrary and capricious and that the sole basis for his denial was their Iranian nationality. The INS should look into each case involving a non-immigrant student on its own facts by striking "a fair balance between the character of the act committed and the consequences which will flow from it." See Mashi v. INS, 585 F.2d 1309, 1315-17 (5th Cir. 1978). This Court is satisfied that he did.

Non-immigrants are allowed to enter the United States by courtesy only and have no right to remain. One of President Carter's responses immediately after the takeover was to direct the Attorney General to:

"Identify any Iranian students in the United States who are not in compliance with the terms of their entry visas, and take necessary steps to commence deportation proceedings against those who have violated applicable immigration laws and regulations." 15 Wkly.Comp. of Pres.Docs. 2107 (Nov. 10, 1979.)³

Discretionary withdrawal of the privilege granted to non-immigrants is "an element of the language of diplomacy by which international courtesies are granted or withdrawn in response to actions by foreign countries." Narenji v. Civiletti, 617 F.2d 745, 747 (D.C.Cir.1979). The INS is free to change its policy when conditions change. States Marine Int'l., Inc. v. Peterson, 518 F.2d 1070, 1081 (D.C.Cir.1975), cert. denied, 424 U.S. 912, 96 S.Ct. 1108, 47 L.Ed.2d 316 (1975). It need not continue to extend the same courtesy and consideration to nationals of unfriendly powers when acts of war have been perpetrated against the United States. See Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981).

This Court recognizes that Congress, or the President may constitutionally draw distinctions on the basis of nationality unless "wholly irrational". Narenji v. Civiletti, supra at p. 747. This does not mean that the District Director may arbitrarily deny the applications of Iranians without authority from the President. But he is entitled to consider the hostile acts of a foreign country in applying his discretion to its nationals in the United States who have violated the terms of their stay. Thus, as a matter of law, the District Director did not abuse his discretion in denying the applications of Shahamiri and Baghayi.

B. The Sadigatfars contend that the INS should have approved their application for permanent status when made on January 20, 1977, before the hostage crisis. Adjustment in status is governed by § 245⁴ of the Immigration and Naturalization Act of 1952 (8 U.S.C. § 1255), amended in 1976.⁵

"The applicant who meets objective pre-requisites is merely eligible for adjustment in status and is in no way entitled to such relief." Faddah v. INS, 580 F.2d 132, 133 (5th Cir. 1978). When Sadigatfar applied to the INS on January 20, 1977, the visa office of the State Department indicated that non-preference visas were available. But prior to the completion of this application, non-preference visas were not available, and Sadigatfar's application was held in abeyance until a visa number could be allocated to him. The INS procedure was properly administered under its own regulations and operating instructions.⁶ An applicant is merely eligible if a visa is immediately available to him at the time of his application and he is otherwise qualified. To require that he be assigned a visa when one was temporarily available to him at the time of his application would be to give a non-preference applicant a preference simply because of an error in the State Department's forecasts of available visas. This would violate the spirit of the statutory scheme Congress enacted.⁷

C. Shamsian was admitted temporarily as a treaty investor under 8 U.S.C. § 1101(a)(15)(E)(ii) and authorized to stay until January 20, 1980. His timely application for extension was denied by the District Director: (1) in accordance with an amendment to 8 C.F.R. § 214.1(c); and (2) because he failed to establish that the purpose of his visit had not yet been accomplished.

Plaintiff contends there was no rational basis for the District Director's conclusion that Shamsian had accomplished the purpose of his stay in the United States. But again, this Court will not substitute its own discretion for that of the District Director, and will uphold his discretion absent a showing that it was abused. No such showing has been made.

Shamsian's principal contention is that a non-immigrant treaty investor, unlike other non-immigrants, may remain here indefinitely so long as he continues to fulfill his treaty alien status. At one time, treaty...