Uzuegbu v. Caplinger

Decision Date13 August 1990
Docket NumberCiv. A. No. 89-4099.
Citation745 F. Supp. 1200
PartiesAnissa Rene UZUEGBU and Boniface Mmuoemenam Uzuegbu v. John B.Z. CAPLINGER, in his capacity as a District Director of the Immigration and Naturalization Service of the United States Department of Justice.
CourtU.S. District Court — Eastern District of Louisiana

COPYRIGHT MATERIAL OMITTED

Thomas P. Adams, Law Office of David A. Kattan, New Orleans, La., for plaintiffs.

Reneé Clark McGinty, Asst. U.S. Atty., New Orleans, La., for defendant.

ORDER AND REASONS

PATRICK E. CARR, District Judge.

This matter is before the Court on cross-motions for summary judgment Document Nos. 11 and 17.

Determining in its discretion that oral argument is unnecessary, the Court previously cancelled the hearing on the motions. For the following reasons, the Court now GRANTS IN PART AND DENIES IN PART each motion; the Court rules for the plaintiffs on their first claim and for the defendant on their second.

Boniface Uzuegbu is an alien. In 1985, the INS issued and served on him an order to show cause why he should not be deported for violating conditions of his visa. In 1987, Mr. Uzuegbu married a U.S. citizen. At some time either before or after the marriage, the order was filed with the Office of the Immigration Judge. The final deportation hearing has not yet been held. Because the marriage occurred after the order was served, the defendant revoked approval of the wife's petition to have her husband classified as an immediate relative under 8 U.S.C. §§ 1151(b) and 1154(a)(1); as statutory authority for his action, the defendant relied solely on 8 U.S.C. §§ 1154(h) and 1255(e)(2), which prescribe granting immediate relative status for an alien on the basis of a marriage entered into while deportation proceedings are "pending" against the alien. The defendant has also denied Mr. Uzuegbu's request under 8 CFR § 274a.12(c)(13) for employment authorization pending the deportation proceedings.

In dispute is an issue of apparent first impression, that is, when deportation proceedings are first considered "pending" for the purposes of 8 U.S.C. §§ 1154(h) and 1255(e)(2). Under the INS regulations applicable to the plaintiffs' particular case, the Court determines that the controlling date is the date the order to show cause is filed. Because there is no evidence that the order was filed before the marriage was entered into, the Court holds that the defendant abused his discretion in revoking Mr. Uzuegbu's immediate relative status.

Also in dispute is the defendant's refusal to grant Mr. Uzuegbu employment authorization. In Perales v. Casillas,1 the Fifth Circuit recently rejected a similar claim. Because Perales is controlling, the Court rejects this second claim.

I.

Plaintiff Boniface Mmuoemenam Uzuegbu is a native and citizen of Nigeria. In January 1983, he entered the United States on an F-12 student nonimmigrant visa. Aliens admitted on these visas are prohibited from working "off-campus" unless granted authorization from the Immigration and Naturalization Service (INS)3 and may be deported if they work off-campus without first obtaining such authorization.4

A.

In the afternoon of October 18, 1985, two INS agents arrested Mr. Uzuegbu.5 Contending that his arrest was improper, Mr. Uzuegbu states by affidavit:

That ... agents of the Immigration and Naturalization Service ... had been looking for one of his neighbors; that they saw him standing in front of his apartment; that they began questioning him about his immigration status when they realized he was not from this country; that they forced him to get in their car with them; that they forced him to state that he had been working illegally; and that at no time did they inform him of his rights.

By counter-affidavit, one of the arresting agents, Supervisory Special Agent Dan L. Barlett, describes a different version of the encounter:

On October 18, 1985 at approximately 3:30 PM,

Boniface Uzuegbu was encountered at the apartment complex at 1330 Johnson Street, Lafayette, Louisiana. This apartment complex is one block from the University of Southwestern Louisiana campus. Initially Mr. Uzuegbu refused to produce any alien registration. When Mr. Uzuegbu did produce his passport and Social Security Card, Special Agent Baumgardner made a check with the office of International Students for the University of Southwestern Louisiana, and also called the Immigration and Naturalization Service Office at 701 Loyola Avenue, New Orleans to have record checks through various indices run on Mr. Uzuegbu.
It was through these record checks that Special Agent Baumgardner learned and advised affiant that Mr. Uzuegbu had been employed illegally at three local Lafayette area restaurants and was currently employed at Steak and Ale Restaurant. Mr. Uzuegbu denied employment and only after being advised that he would be taken to Steak and Ale and confronted with the manager there did he admit he was working. At approximately 4:00 PM, Mr. Uzuegbu was advised of his rights on Form I-214. Mr. Uzuegbu refused to sign the Waiver of Rights and he was not interrogated.6

In connection with the arrest, defendant John B.Z. Caplinger, who was then Assistant District Director for Investigations at the New Orleans INS Office, issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) against Mr. Uzuegbu.7 The form alleges that Mr. Uzuegbu "was, without the permission of the U.S. Immigration and Naturalization Service, employed by Steak and Ale Restaurant, 3651 Ambassador Caffrey Parkway, Lafayette, Louisiana from January 1985 until June 1985 as a dishwasher." According to a notation on the form, Agent Barlett served the form on Mr. Uzuegbu that evening. On or before October 24, 1985, Mr. Uzuegbu was released on bond.8

The government alleges an INS attorney sent the original Order to Show Cause (OSC) to an immigration judge in Atlanta, Georgia. The sole evidence the government presents on this point is a certified copy, from the INS records, of a memorandum dated October 25, 1985; the memorandum contains the attorney's purported signature, is addressed to an immigration judge in Atlanta, and merely indicates: "Attached please find ... original order to show cause." While as indicated below it is implicit that an immigration judge ultimately received at least a copy of the OSC, the record does not indicate when or even whether this memorandum, or the original of the OSC, was in fact mailed to or actually received by any immigration judge.

Thereafter, according to the INS record submitted by the government, the INS took no action on Mr. Uzuegbu's proceeding for over 1½ years. On May 5, 1987, the Executive Office for Immigration Review (EOIR) in Oakdale, Louisiana mailed Mr. Uzuegbu (at his by-then former address)9 a Notice of Hearing on May 15, 1987 for deportation proceedings.10 The record does not show whether he received the notice. Mr. Uzuegbu did not appear at the hearing, and the immigration judge ordered "that the case be administratively closed without prejudice. No further action will be taken in this matter until such time as the respondent is located and the matter recalendared for further proceedings."11

On August 25, 1987, an INS attorney filed with the New Orleans Office of the Immigration Judge a Motion to Recalendar; the motion contains a notation that Mr. Uzuegbu had moved to a different address. An unsigned memorandum from the INS records indicates that on September 29, 1987, a hearing was set for October 29, 1987. The memorandum contains a notation: "Married but under Marriage Fraud Act; therefore no administrative relief available." The memorandum further indicates that the hearing was held on October 29, 1987, that Mr. Uzuegbu was represented by counsel, and that he was "found deportable" and given a voluntary departure date of January 15, 1988.

The record includes a Decision of the Immigration Judge (Form EOIR-6) that Mr. Uzuegbu "is deportable on the charge(s) in the Order to Show Cause" and that "in lieu of an order of deportation respondent be granted voluntary departure ... on or before Jan. 15, 1987 sic; should read 1988."12 The decision contains no written "discussion of the evidence and findings as to deportability."13 The further records of the hearing were destroyed by fire in late November 1987 during a prison riot at the Oakdale Federal Detention Center, which the INS uses as a storage center for many of its official documents.

On November 6, 1987, Mr. Uzuegbu filed a timely notice of appeal to the Board of Immigration Appeals. The notice sets forth various evidentiary bases for the appeal.14

Meanwhile, on April 3, 1987, Mr. Uzuegbu married plaintiff Anissa Rene Handy, a U.S. citizen by birth; there is no evidence or suggestion that the marriage was fraudulent or improper in any respect such as to evade the immigration laws. On September 16, 1987, Mrs. Uzuegbu filed a verified INS Form I-130 visa petition seeking to classify her husband as an immediate relative.15 On November 15, 1987, the INS approved the petition.

On June 29, 1989, defendant Caplinger, who had now become the District Director of the New Orleans INS Office, wrote Mrs. Uzuegbu a letter notifying her that her petition was "automatically revoked as of the date of approval." The letter includes the following explanation:

Record material indicates that you contracted marriage with the alien beneficiary on April 3, 1987, at Lafayette, Louisiana. The record further reflects that your spouse was served with an Order To Show Cause and Warrant for Arrest on October 15, 1985.
Review of the evidence indicates that the petition was approved in error and that Mr. Uzuegbu was statutorily ineligible to have an Immediate Relative Petition approved on his behalf until he has resided outside the United States for two years.

As authority, the letter cites 8 CFR § 205.1(a)(10) and 8 U.S.C. § 1154(h).

Meanwhile, on January 17, 1989, the...

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