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FAUSTINO v. INS

June 17, 1969

Susan M. FAUSTINO, Infant under 14 years of age, by her Guardian ad Litem Albano Vieira, Plaintiff,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Defendant



The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge.

 Motion by plaintiff pursuant to 28 U.S.C. §§ 2282 and 2284 to convene a three judge court, is denied. Motion by plaintiff pursuant to Rule 56, Federal Rules of Civil Procedure, for summary judgment granting injunctive relief, is denied. Motion by defendant pursuant to Rule 56, Federal Rules of Civil Procedure for summary judgment dismissing complaint, is granted.

 The jurisdictional predicate is not enunciated by the plaintiff in the complaint. Clearly, the request for convocation of a three judge court pursuant to 28 U.S.C. §§ 2282, 2284 will not suffice. However, the district court's jurisdiction may be predicated upon Section 279 of the Act. *fn1"

 The question presented has been accurately framed by the Government in its brief to be

 
[has] plaintiff presented a substantial Constitutional question by her allegation that section 201(b) of the Act denied her equal protection because it subjects the alien parents of infant U.S. citizens to the worldwide numerical limitation of immigrant visas while exempting alien parents of adult U.S. citizens from that limitation.

 The Court finds that the plaintiff has not presented a substantial question. In arriving at its decision the Court was not unmindful of its responsibility to carefully scrutinize a request to convene a three judge court, in the interests of judicial economy. Bynum v. Conn. Com'n on Forfeited Rights, et al., 410 F.2d 173 (2 Cir. 1969) and cases cited therein.

 The operative facts which form the basis of this litigation are not placed in dispute by the affidavits of the parties.

 Plaintiff, Susan M. Faustino was born on November 6, 1961 in New York, N.Y. Her parents Antonio DePinno Faustino and Olinda Baptista Faustino are, and were at the time of her birth, citizens of Portugal. In August of 1961, both of plaintiff's parents were admitted into the United States as tourists pursuant to Section 101(a)(15)(B) of the Act, 8 U.S.C. § 1101(a)(15)(B). At the time of their admission Olinda was expecting a child. Prior to the expiration of his visitor's visa Antonio was granted permission to remain as a student from October 3, 1961 until October 3, 1962. His wife was granted a similar extension, and, during this period, in November 1961, plaintiff was born.

 Thereafter, the parents of the plaintiff remained in this country illegally beyond the October date and Antonio became employed, although no permission was granted for said employment. Ultimately, the Faustinos departed the country in 1963. Antonio Faustino returned to this country in 1965 as a visitor for pleasure and again continued his sojourn illegally.

 In 1966, he secured a position as chauffeur to a Permanent Mission of the United Nations and despite his then illegal status, was allowed to remain in this country pursuant to Section 101(a)(15)(G)(v) of the Act, 8 U.S.C. § 1101(a)(15)(G)(v) in non-immigrant status. Plaintiff's mother was admitted to this country in 1967 by virtue of her husband's employment.

 In July of 1968 the infant petitioner by her guardian ad litem filed a visa petition to classify her father "immediate relative" pursuant to Section 201(b) of the Act, 8 U.S.C. § 1151(b), in the face of clear language in the statute prohibiting the grant of such an application.

 
(b) The 'immediate relatives' referred to in subsection (a) of this section shall mean the children, spouses and parents of a citizen of the United States: Provided that in the case of parents, such citizens must be at least twenty-one years of age. The immediate relatives specified in this subsection who are otherwise qualified for admission as immigrants shall be admitted as such, without regard to the numerical limitations in this Act.

 The application was, as it should have been, denied by both the District Director and the Board of Immigration Appeals on the grounds that beneficiary Antonio Faustino was ineligible for "status as an immediate relative" in view of the undenied fact that "citizen petitioner is only seven years of age".

 Plaintiff brought this action for a declaratory judgment declaring Section 201(b) of the Act 8 U.S.C. § 1151(b) unconstitutional and void, and, for a further order directing the defendant to process a visa petition for her father. The plaintiff bottoms her prayer for relief on an allegation of denial of "equal protection of law", reasoning that when, as here, equal protection is denied the Fifth Amendment "due process clause" is violated. The plaintiff asserts that the Fifth Amendment restrains discrimination of such a character as to bring into operation the due process clause, and that legislation by Congress of a discriminatory nature can amount to a denial of due process. From this, plaintiff reasons that if discrimination can be shown, it is a denial of due process. Plaintiff, however, does acknowledge that classifications are usually upheld if they are related to proper legislative purpose.

 Essentially, plaintiff contends that the instant classification is arbitrary, and that it denies infant citizens a benefit afforded to citizens who have reached their majority. While the latter is ...


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