The opinion of the court was delivered by: LEVET
Plaintiff is an alien, a native and citizen of China, who last entered the United States on July 13, 1961. On that date he was admitted into the United States as a non-immigrant crewman for the period of time his ship remained in port not to exceed twenty-nine days. Plaintiff, however, remained in the United States past the twenty-nine day period without authority.
On January 24, 1964, a final order of deportation was entered against the plaintiff under Section 242(b) of the Immigration and Nationality Act, as amended (hereinafter "The Act"), 8 U.S.C. § 1252(b). Pursuant to that order, plaintiff was granted the privilege of voluntary departure and was to depart on or before November 1, 1965. He failed to do so and, accordingly, is under an order of deportation which the defendant, District Director, is prepared to execute.
On February 1, 1966, plaintiff applied for a stay of deportation under 8 CFR § 243.4 in order to prosecute an application for adjustment of status under Section 203(a)(7) of the Act, 8 U.S.C. § 1153(a)(7). In his application, plaintiff claimed he was a refugee from Communist China who had been continuously present in the United States for a period of two years. The District Director denied his application for a stay on the ground that plaintiff, as a crewman, could not adjust his status under 8 CFR § 245.1.
Plaintiff then brought this action which seeks a judgment declaring that he is entitled to apply to adjust his status under Section 203(a)(7), that he is entitled to such relief, and that the regulations, particularly 8 CFR § 245.4, which make him ineligible for such relief, are illegal and void. The defendant District Director now moves to dismiss the complaint on the ground that this court lacks jurisdiction over the subject matter and, in the alternative, for summary judgment dismissing the complaint as a matter of law.
SUBJECT MATTER JURISDICTION
The District Director contends that the thrust of the present case is directed against a final order of deportation in spite of the fact that nominally the complaint challenges only the denial of a stay of deportation and that, therefore, exclusive jurisdiction over the present case is vested in the Court of Appeals by Section 106 of the Act, 8 U.S.C. § 1105a.
Section 106, when read together with Sections 1031-1042 of Title 5 of the United States Code, provides that judicial review of all final orders of deportation issued pursuant to Section 242(b) of the Act, 8 U.S.C. § 1252(b), shall be by the Court of Appeals. The essential question at this juncture then is: Is a denial of a stay of deportation a final order of deportation? On this, there is a conflict of authority which the Supreme Court has not yet resolved. The late Judge Dawson of this court held that a denial of a stay of deportation was not a final order of deportation. Lam Tat Sin v. Esperdy, 227 F. Supp. 482 (S.D.N.Y.), aff'd 334 F.2d 999 (2nd Cir.), cert. denied 379 U.S. 901, 85 S. Ct. 190, 13 L. Ed. 2d 176 (1964) (the Second Circuit did not discuss the jurisdictional question). The Seventh Circuit, however, has held recently that a denial of a stay of deportation is a final order of deportation for which judicial review is vested exclusively in the Court of Appeals. Melone v. Immigration & Naturalization Service, 355 F.2d 533 (7th Cir. 1966).
The conflict arises by reason of differing views as to the ambit of the Supreme Court's decision in Foti v. Immigration & Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963). There the Supreme Court held that the Court of Appeals has exclusive jurisdiction to review an administrative determination of the Attorney General denying a suspension of deportation sought under Section 244(a)(5) of the Act. The Court reasoned that such a determination by the Attorney General was part of and incident to the deportation proceedings themselves and, thus, denial of such relief was a final order of deportation.
An application for a stay of deportation, however, is not part of the administrative proceedings pursuant to Section 242(b) of the Act; it follows them. The District Director, however, insists that in this case the application is directed at a final order of deportation and that if the plaintiff had followed the usual procedure for obtaining adjustment of status under Section 245, that is, a motion to reopen the deportation proceedings themselves, his remedy now would be in the Court of Appeals. Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964), reversing 308 F.2d 347 (9th Cir. 1962); Hitai v. Immigration & Naturalization Service, 343 F.2d 466 (2nd Cir.), cert. denied 382 U.S. 816, 86 S. Ct. 36, 15 L. Ed. 2d 63 (1965). While there may be some support for the District Director's argument, I am of the opinion that it does make a difference that the plaintiff here sought only a stay of deportation. The usual procedure was not open to this plaintiff. As an alien crewman he could not apply for adjustment of status under Section 245. Rather, he seeks relief under Section 203(a)(7) in proceedings which are not incident to the deportation proceedings themselves. The question may be a close one, but, in my opinion, this court has jurisdiction over the subject matter so that I will now proceed to consider the merits of plaintiff's claims.
As heretofore mentioned, the purpose of plaintiff's application for a stay of deportation was to enable him to prosecute an application for adjustment of status under Section 203(a)(7) of the Act, 8 U.S.C. § 1153(a)(7), and that stay was denied on the ground that plaintiff as an alien crewman was unable to adjust his status by reason of 8 CFR § 245.1. The latter regulation when read in connection with 8 CFR § 245.4 denies alien crewmen the privilege of adjusting their status under Section 203(a)(7). The question before me now is whether those regulations are in accordance with the law.
Section 203(a)(7) of the Act, 8 U.S.C. § 1153(a)(7), provides in pertinent part as follows:
"§ 1153. Allocation of immigrant visas - Categories of preference priorities; per centum limitations; ...