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WEN CHEUK v. ESPERDY

November 23, 1959

WEN CHEUK (File No. A10 256 513), Plaintiff,
v.
P. A. ESPERDY, District Director of the Immigration and Naturalization Service for the District of New York, Defendant. YUNG YEE HO (File No. A10 294 129), Plaintiff, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service for the District of New York, Defendant. YIP LU (File No. A10 247 715), Plaintiff, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service for the District of New York, Defendant. WONG CHONG (File No. A9 707 424), Plaintiff, v. P. A. ESPERDY, District Director of the Immigration and Naturalization Service for the District of New York, Defendant



The opinion of the court was delivered by: LEVET

The issues in these four cases are identical and they are considered together. The defendant has moved for an order pursuant to Rule 12(b)(6) and (7) of the Federal Rules of Civil Procedure, 28 U.S.C.A., dismissing the identical complaints of the plaintiffs on the grounds that they fail to state a claim upon which relief can be granted and that there has been a failure by plaintiffs to join an indispensable party.

Each plaintiff had made an application for the issuance of a special non-quota immigrant visa as a refugee escapee under Section 15 of the Act of September 11, 1957, Public Law 85-316, 71 Stat. 639, 50 U.S.C.A.Appendix, § 1971a note. Upon denial of the relief in each case, complaints were filed against the defendant. Each complaint prayed for a declaratory judgment declaring that plaintiff was entitled, on the merits, to consideration and approval for a non-quota immigrant visa, and that the defendant be restrained from deporting plaintiff pendente lite and until final determination of his application. In each case plaintiff obtained an order to show cause with a stay of deportation pending determination of the motion.

 The basis of each complaint was that the decision of the defendant (i.e., the District Director, Esperdy) in denying the application was an arbitrary and capricious finding on the part of the defendant and of the State Department and that the failure of the defendant to grant such consideration on the merits to the plaintiff was based upon a void and illegal agreement between the Immigration and Naturalization Service and officials of the State Department.

 The defendant avers that he only 'processed' the application and disavows any authority to grant any visa. The only person who has the authority to issue such a visa, according to the defendant, is the Secretary of State. The defendant alleges that the complaint does not state a claim upon which relief can be granted in that 'a grant of a visa does not lie within the province of this defendant, and this Court cannot enter a judgment declaring plaintiff's entitlement to approval of his application for a visa.'

 Secondly, the defendant alleges that the Secretary of State is an indispensable party who must be joined. He maintains that since only the Secretary of State, or his delegates, is authorized to issue visas, and insofar as plaintiff claims to be aggrieved by an arbitrary refusal to have a visa issued, an action to review such determination must be brought against the person to whom the evidentiary plea was made, and who made the decision.

 In opposition to the motions to dismiss the complaints, the plaintiffs take the position that the power to pass upon the applications under Section 15 was delegated to the District Director and that therefore he is the only necessary party. The plaintiffs point to the facts that Section 15 applications were filed with the Immigration and Naturalization Service and processed under the aegis of the District Director, administrative hearings were conducted by immigration officers under the direction of the District Director, and notifications of decisions rendered were thereafter furnished by the District Director to the applicants and their counsel.

 Plaintiffs rely upon the case of Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 for the proposition that the review proceeding can be brought against the District Director in the area where the administrative proceeding was conducted in suits challenging the denial of discretionary relief or where the challenge is based upon constitutional or other grounds.

 The facts are as follows:

 1. Each plaintiff, admittedly deportable from the United States by virtue of his having remained longer than the period granted to him on his admission, applied to the defendant for an application for the issuance of a special nonquota immigrant visa.

 2. The applications were processed by the District Director and administrative hearings were conducted at the Immigration and Naturalization Service.

 3. The District Director furnished to the Office of Refugee and Migration Affairs of the Department of State at Washington, D.C. all pertinent data adduced by each plaintiff bearing on his claim to entitlement to a refugee escapee visa.

 4. In each case, the Department of State informed the District Director that plaintiff's application had been examined 'by the Departmental Review Committee' of the Special Immigration Program of the Department of State, and it was there decided that plaintiff was ineligible for a special non-quota visa.

 5. In each case, the District Director sent a notice of denial to the plaintiff informing him that the application for adjustment of status had been denied because an immigrant visa was not available. In the cases of Yung Yee Ho, Wong Chong and Yip Lu the following reason was given: 'An immigrant visa is not immediately available as required by Section 245 of the Immigration and Nationality Act (8 U.S.C.A. § 1255). The Department of State, after due consideration, has found you to be ineligible for a special nonquota visa under Section 15(a)(3) of the Act of September 11, 1957.' The plaintiffs were informed that appeals of that decision might be made to the Regional Commissioner and forms for that purpose were furnished.

 6. The Secretary of State and/or any of his delegates, e.g., consular officers, are the only officers charged with the issuance of non-quota visas to refugee escapees under Section 15 of ...


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