The opinion of the court was delivered by: WYATT
This is a motion (heard on February 16, 1971) by Lincoln Roy Buckley and by Everlast Saw and Carbide Tools, Inc. (Everlast) for a preliminary injunction to stay the defendant Thomas Gibney, Deputy District Director of the Immigration and Naturalization Service (Service), from enforcing a warrant of deportation issued against Buckley on January 18, 1971. In response, an Assistant United States Attorney, representing Deputy District Director Gibney, filed an affidavit contesting Buckley's claims and requesting that the complaint be dismissed. The administrative file has also been submitted.
There is substantial agreement concerning the events out of which this action arose.
Buckley came to the United States as a visitor for pleasure (8 U.S.C. § 1101(a)(15)(B); 8 CFR § 214.2(b)), entering the country on September 16, 1967. Soon thereafter, he accepted his present job in New York City. This was a violation of a condition for his entry into this country and made Buckley deportable under 8 U.S.C. § 1251(a)(9). His visa for a pleasure visit authorized Buckley to remain in the United States until October 15, 1967. He applied for an extension, evidently by deceiving the Service, and secured an extension until February 28, 1968.
In early 1968, Buckley applied for and received a certification from the Secretary of Labor under 8 U.S.C. § 1182(a)(14). This certification was that there were not sufficient workers in the United States who were able, etc. to do the type of work that Buckley was capable of performing and that Buckley's employment would not adversely affect the wages or working conditions of those workers already in the United States. This certification satisfied one of the conditions for Buckley to receive a visa. 8 U.S.C. § 1182(a).
On April 12, 1968, Everlast, Buckley's employer, filed a petition on Buckley's behalf for a visa under 8 U.S.C. § 1153(a)(6) "skilled or unskilled labor" in the words of the statute and sometimes called a "sixth preference visa". This petition was approved by the Service on February 5, 1969. This approval meant that Buckley could receive a sixth preference visa when and if one became available for that class. It is extremely unlikely, however, that any visa will be available in the foreseeable future to citizens of British Honduras in the sixth preference class. The statutes permit two hundred immigration visas to be issued to citizens of British Honduras each year. 8 U.S.C. § 1152(a), (c). According to the affidavit of an Assistant United States Attorney, these two hundred visas are all taken up by those in the first preference class; thus, there is little reason to expect that Buckley, with a sixth preference, will ever be able to get a visa. It was doubtless for this reason that Buckley remained in the United States, despite the fact that his visitor's visa was no longer valid.
On June 9, 1970, the Service initiated deportation proceedings against Buckley by issuing an order to show cause. It was averred (properly it seems) that Buckley was in the country in violation of law and could be deported under 8 U.S.C. § 1251(a)(2). A hearing was held before a Special Inquiry Officer of the Service on June 16, 1970. At that time Buckley, who was then represented by counsel, admitted that he was deportable. He was granted voluntary departure (8 U.S.C. § 1254(e)) on the condition that if he did not leave the country on or before July 16, 1970 he would be deported. Buckley waived his right to appeal and the order became final. 8 CFR § 242.20.
Before the July 16 date, Buckley submitted motion papers requesting an extension of time for voluntary departure, a stay of deportation, and a reopening of the deportation proceedings. The basis for these requests was that he should be granted a status adjustment under 8 U.S.C. § 1255. The cited section permits the Attorney General to adjust the status of certain aliens "to that of an alien lawfully admitted for permanent residence."
As to that part of the motion requesting that the proceedings be reopened, there was a referral to a Special Inquiry Officer. On July 17, 1970, he denied the motion on the ground that Buckley was "statutorily ineligible for adjustment of status by reason of the unavailability of" immigration visas to those other than those with first preference. Buckley appealed this decision to the Board of Immigration Appeals which affirmed the order on December 11, 1970.
Meanwhile, that part of the motion requesting an extension of time for voluntary departure and for a stay of deportation had been denied by an Assistant Deputy District Director for Deportation on July 7, 1970. He also noted that Buckley was not eligible for status adjustment under 8 U.S.C. § 1255.
On January 18, 1971, the Deputy District Director issued a warrant for Buckley's deportation. On January 20, 1971, the Service notified Buckley that he was to report for deportation on February 2, 1971.
By motion filed on January 28 and directed to the District Director and Special Inquiry Officer, Buckley requested reinstatement of voluntary departure, a stay of deportation, and a reopening of the deportation proceeding, with permission to argue orally before the Board of Immigration Appeals if his motion were denied. On January 29, 1971, the Deputy District Director denied the motion as to a request for voluntary departure and for a stay. The application to reopen the proceedings was directed to the Board as was at that point required by 8 CFR § 3.2. On February 5, 1971, the Board filed an order denying this application.
On February 1, 1971, Buckley filed a petition for review in the Court of Appeals, Second Circuit (Docket No. 71-1104). This automatically stayed his deportation. 8 U.S.C. § 1105a(a)(3). On February 4, 1971, he stipulated to withdraw this petition with prejudice.
On the day his petition to the Court of Appeals was withdrawn, Buckley commenced this action and obtained from Judge Bryan an order to show cause with a temporary ...