Soon Bok Yoon v. Immigration and Naturalization Service

• Decision Date: 20 September 1976
• Docket Number: No. 76-1887,76-1887
• Citation: 538 F.2d 1211
• Parties: SOON BOK YOON, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1211

538 F.2d 1211

SOON BOK YOON, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 76-1887

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 20, 1976.

Clave E. Gill, III, Lila Tritico, New Orleans, La., for petitioner.

Edward H. Levi, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Philip Wilens, Acting Chief, Dept. of Justice, Govt. Reg. & Labor Sect., Rex Young, Crim. Div., James P. Morris, Attys., Washington, D. C., for respondent.

Troy A. Adams, Jr., Dist. Director, Immigration & Nat. Ser., New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service (Louisiana Case).

Before AINSWORTH, CLARK and RONEY, Circuit Judges.

PER CURIAM:

Soon Bok Yoon, a married female alien and citizen of the Republic of Korea, appeals an order of the Immigration and Naturalization Service (INS) requiring her immediate deportation under § 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2). Finding no error of law or abuse of discretion in the administrative proceedings, we affirm.

Soon Bok Yoon entered the United States at Honolulu, Hawaii, on September 27, 1974, as a nonimmigrant visitor for pleasure. See Immigration and Nationality Act § 101(a)(15)(B), 8 U.S.C. § 1101(a)(15)(B). She was later granted an extension of this visitor status until May 30, 1975. On June 9, 1975, a district director of the INS authorized voluntary departure on or before September 9, 1975. However, she did not leave the country by the deadline. An order to show cause why deportation should not be required was issued November 7, 1975. A hearing on the order was held before an immigration judge November 18, 1975, at which the order of deportation on appeal here was issued. After briefing and oral argument, the Board of Immigration Appeals dismissed the appeal March 26, 1976.

We need not reach Yoon's contention that she has been subjected to unconstitutional discrimination by the applicability to her, as an Eastern Hemisphere alien, of a labor certification requirement not applicable to Western Hemisphere aliens. See Immigration and Nationality Act §§ 201, 203(a) (6), 8 U.S.C. §§ 1151, 1153(a)(6). The record and briefs indicate that the action taken here was not affected by the presence or absence of labor certification under § 1153 but was determined entirely by the clear deportability of Mrs. Yoon under § 1251. Moreover, had Mrs. Yoon begun proceedings that would have brought her onto a collision course with the labor certification requirement, the unavailability of 1975 immigrant visas to Eastern and Western hemisphere aliens alike would have negated any possibility of discriminatory effect. See 8 C.F.R. § 211.1 (1976); Bureau of Security and Consular Affairs, Availability of Immigrant Visa Numbers, Vol. II, Nos. 84-96 (1975); 52 Interpreter Releases 3, 86, 348 (1975). Under these circumstances familiar concepts preclude entertainment of a hypothetical challenge to a statute never invoked. See Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

Similarly meritless is Yoon's contention that the immigration judge failed to apprise her of alternative forms of discretionary relief (other than voluntary departure, which she refused) as required by 8 C.F.R. § 242.17. Moreover, Mrs. Yoon's record contained clear evidence of her ineligibility for any form of discretionary relief other than voluntary departure. Section 242.17 does not require that a respondent in immigration proceedings be informed of procedures inapplicable to her, nor does it require the inquiry officer to inform the respondent of the availability of "nonpriority status" because that relief is neither "enumerated in (that) paragraph," nor is it a form of relief for which she "may apply."

The Second Circuit has described nonpriority status as an "informal administrative stay of deportation" during which the deportation order remains suspended and may be executed at any time, and there is no effect on the substantive ruling by the INS. Lennon v. Immigration & Naturalization Service, 527 F.2d 187, 191 n. 5 (1975). An examination of the Lennon opinion...