Solis-Ramirez v. U.S. Dept. of Justice
| Decision Date | 25 April 1985 |
| Docket Number | SOLIS-RAMIREZ,No. 84-3057,84-3057 |
| Citation | 758 F.2d 1426 |
| Parties | Guillermo, individually and on Behalf of Paula Sandra SOLIS, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Charles R. Colbrunn, Orlando, Fla., for plaintiff-appellant.
Jeffrey J. Tinley, Asst. U.S. Atty., Orlando, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before HATCHETT and CLARK, Circuit Judges, and STAFFORD *, District Judge.
Appellant Guillermo Solis-Ramirez seeks relief from an adverse decision of the Immigration and Naturalization Service (INS) regarding his immigration petition. The district court dismissed the case for failure to state a claim upon which relief could be granted. We affirm.
Guillermo Solis-Ramirez is a native of Mexico who seeks immigrant status in the United States. In 1976, after filing the appropriate material with the United States Consulate at Monterey, Mexico, he was classified as a "special immigrant" and given a priority date of August 5, 1976. Under the immigration laws in effect at that time a special immigrant was one "born in any independent foreign country of the Western Hemisphere or in the Canal Zone and the spouse and children of any such immigrant...." 8 U.S.C.A. Sec. 1101(a)(27)(A) (Act of 1965). Even after being accorded that status, Solis-Ramirez could not be lawfully admitted for permanent residence in the United States until he had been issued an immigrant visa number from INS. However, immigration laws only permit a limited number of visas to be issued each year. In 1976, as now, the number of applicants was much greater than the number of visas actually available. Consequently, Congress established a method of allocating the available visas. Under current law, visas are assigned based upon three factors: the applicant's preference classification, the applicant's place of birth and the applicant's priority date. See 8 U.S.C. Sec. 1153(a) (1982).
In 1976, when Solis-Ramirez originally was accorded his priority date, immigrants from the Western Hemisphere were not given a preference classification. Instead, visas were allocated to special immigrants based only upon their priority date, assuming all other requirements were met. Special immigrants normally had to have a labor certification before being granted a visa. However this requirement was waived for special immigrants who were parents, spouses or children of United States citizens. 8 U.S.C.A. Sec. 1182(a)(14) (1965 Act). Solis-Ramirez was exempt from the labor certification requirement because he has a daughter who is a United States citizen. Therefore, under the law in effect at the time, Solis-Ramirez had met all the requirements for immigration in 1976 and merely had to wait until his priority date was reached at which time he would be issued a visa. But the backlog of applications gave his application little chance of reaching the priority date.
In October of 1976 the immigration laws were amended. See Immigration and Nationality Act of 1976, Pub.L. No. 94-571, 90 Stat. 2703. Under the new law immigrants from the Western Hemisphere and the rest of the world are treated equally. All are subject to the same preference classification system. See 8 U.S.C. Sec. 1153(a) (1982). Immigrants from the Western Hemisphere who had acquired priority dates under the old law were integrated into the preference system by a "savings clause." This clause provides that such immigrants will retain their old priority date and will be classified as non-preference (Section 203(a)(8)) immigrants until another classification is acquired:
[Aliens from the Western Hemisphere] who established a priority date at a consular office on the basis of entitlement to immigrant status under statutory or regulatory provisions in existence on the day before the effective date of this Act shall be deemed to be entitled to immigrant status under section 203(a)(8) of the Immigration and Nationality Act and shall be accorded the priority date previously established by him. Nothing in this section shall be construed to preclude the acquisition by such an alien of a preference status under section 203(a) of the Immigration and Nationality Act, section 4 of this Act. Any petition filed by, or in behalf of, such an alien to accord him a preference status under section 203(a) shall, upon approval, be deemed to have been filed as of the Immigration and Nationality Act of 1976, Pub.L. No. 94-571, Sec. 9(b), 90 Stat. 2703, 2707 (1976) (hereinafter "savings clause").
priority date previously established by such alien....
Accordingly, under the new laws, Solis-Ramirez is classified as a non-preference immigrant with a priority date of August 5, 1976. However, the new status does not help Solis-Ramirez in his attempt to become a lawful immigrant because the number of applicants is still far greater than the number of visas available. As a result, all visa numbers are alloted to the six preference classifications--no visas have been available to non-preference immigrants since 1978.
By October 1982, Solis-Ramirez was living in Florida as an illegal alien. With little chance of attaining lawful immigrant status in the United States as a non-preference immigrant, Solis-Ramirez took steps to elevate his status to that of a sixth preference immigrant. Solis-Ramirez was employed as a harvest supervisor for F.P. Cade & Sons, Inc. Cade filed a petition for a visa for Solis-Ramirez. The INS rejected the application because Solis-Ramirez did not have the labor certification required of sixth preference aliens.
When the application was returned, Solis-Ramirez sought administrative review and eventually sought relief in the U.S. District Court for the Middle District of Florida. That relief was denied when the district court granted INS's motion to dismiss for failure to state a claim.
On this appeal, appellant raises three issues. First, he claims that the district court did not apply the appropriate standard when considering the motion to dismiss. Second, he claims that the district court improperly considered the motion to dismiss as a motion for summary judgment without the required notice to the plaintiff. Finally, he urges that the proper interpretation of the savings clause permits him to elevate his status to a sixth preference alien without the usual requirement of a labor certificate.
Solis-Ramirez contends that the order of dismissal should be reversed because the district court did not follow proper procedure when it dismissed his complaint. In support of this claim, he argues that the district court did not apply the appropriate standard in its consideration of the motion to dismiss. Appellant correctly states that when considering a motion to dismiss, the court must accept all allegations of fact as true and should only dismiss when it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proven in support of his claim. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66, 99 S.Ct. 383, 387-388, 58 L.Ed.2d 292 (1978). But, in this case, even when all of appellant's factual allegations are accepted as true, Solis-Ramirez would not be entitled to relief unless the court adopts his asserted interpretation of the savings clause. However, the statutory interpretation issues raised by appellant are questions of law. The district court is not required to accept as true appellant's conclusions of law when considering a Rule 12(b)(6) motion to dismiss. Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.1974). On the contrary, the court may make its own determination of the legal issue, as the district court did in this case.
After consideration of the statutory interpretation issue, the district court chose not to adopt the construction asserted by the appellant. Concluding that there was no basis in law for appellant's claim, the district court dismissed the case....
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