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Dombrovskis v. Esperdy

August 7, 1963

JANIS OSVALD DOMBROVSKIS ET AL., PLAINTIFFS-APPELLANTS,
v.
P. A. ESPERDY, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT-APPELLEE.



Author: Hays

Before MOORE, HAYS and MARSHALL, Circuit Judges.

HAYS, Circuit Judge.

The appellants, who are Yugoslav and Latvian seamen, appeal from judgments of the district court which (1) dismissed appellants' claims seeking adjustment of status from nonimmigrants to permanent-resident immigrants, 8 U.S.C. § 1255, for failure to join the Secretary of State (185 F.Supp. 478), and (2) dismissed on the merits appellants' claim that they were denied discretionary stays of deportation under Section 243 (h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), because of an unlawful policy against granting such relief to crewmen (209 F.Supp. 673). We affirm both judgments.

Appellants are concededly deportable aliens.*fn1 Briefly stated, they alleged in both claims that various adverse administrative determinations affecting their immigration status had been made not on the merits of their individual applications, but as the result of a predetermined government policy against granting relief to aliens who entered the United States as crewmen.

I.

The first claim relates to an attempt by appellants to have their nonimmigrant status adjusted to that of permanent resident immigrants pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255.*fn2 A prerequisite to the granting of such relief is the immediate availability of a visa. 8 U.S.C. § 1255(a) (3). Since the immigration quota applicable to each of the appellants was oversubscribed, appellants' eligibility for adjustment depended on the availability of non-quota visas. Section 15 of the Act of September 11, 1957*fn3 authorized the allotment and issuance of such visas by "consular officers" to aliens who were "refugee-escapees." The latter term was defined to include "any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee * * * from any Communist, Communist-dominated, or Communist-occupied area." Ibid. The applicable regulation, as amended, provided:

"A special nonquota visa shall not be held to be available under section 15 of the Act of September 11, 1957, unless the alien, having been admitted as a non-immigrant prior to April 18, 1958, has been allocated such a visa by the Director, Office of Refugee and Migration Affairs, Department of State; any alien who believes that he qualifies for such a visa may submit his application therefore, prior to June 1, 1959, to any immigration office for submission to the Office of Refugee and Migration Affairs, Department of State."

24 Fed.Reg. 3491 (May 1, 1959).*fn4

Appellants and several others submitted applications for visas to the appellee, and after an initial delay (see footnote 4), the applications were forwarded by appellee to the Office of Refugee and Migration Affairs, Department of State. Three of the applications were approved, the remainder were denied for the stated reason that the applicants had not proved, as required by Section 15,*fn5 that they had fled from Yugoslavia or Latvia "because of persecution or for fear of persecution on account of race, religion, or political opinion."

Appellants thereupon filed an amended complaint seeking a judgment which would declare the denial of relief unlawful because it had been based not on individual consideration of the merits of appellants' applications, but on an unlawful policy directive from the Attorney General to the Department of State, directing that "refugee-escapee" visas be denied to crewmen. Judge Dimock held that the Secretary of State was an indispensable party defendant, and that since the Secretary neither had been nor could be joined, former 28 U.S.C. § 1391, 62 Stat. 935 (1948), the claim should be dismissed.

The gravamen of appellants' claim is that they were unlawfully denied "refugee-escapee" visas. It is clear from the statute and regulations set forth above that power over the issuance of visas resides exclusively in the consular officers and the Office of Refugee and Migration Affairs of the Department of State. See also 8 U.S.C. §§ 1101(a) (16), 1201, 1202, 1204; 22 C.F.R. (1958 rev.) parts 40, 41, 42, §§ 44.2(d), 44.3, 44.6. Appellee has no power over the issuance of visas; once he had forwarded appellants' applications for adjustment of status to the Department of State for a determination of whether visas were available, there was nothing more that he could do. The subsequent denial of appellants' applications was required by the Department's determination that no visas were available. Since appellee has no power to grant the relief sought by appellants, issuance of a decree against the appellee would be a useless act.

In Ceballos v. Shaughnessy, 352 U.S. 599, 77 S. Ct. 545, 1 L. Ed. 2d 583 (1957), the Court said:

"[Determination] of the question of indispensability of parties is dependent, not on the nature of the decision attacked, but on the ability and authority of the defendant before the court to effectuate the relief which the alien seeks."

352 U.S. at 603, 77 S. Ct. at 547, citing Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955). Cf. Blackmar v. Guerre, 342 U.S. 512, 72 S. Ct. 410, 96 L. Ed. 534 (1952). The test is whether the decree sought would "effectively grant the relief desired by expending itself on the * * * official who is before the ...


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