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NGUYEN KIN LAN KHANH v. SOL MARKS

September 7, 1972

In the Matter of NGUYEN KIN LAN KHANH and Doan H. Khanh, Petitioners,
v.
Hon. Sol MARKS, as District Director for the New York District Immigration and Naturalization Service, United States Department of Justice, Respondent


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

MOTLEY, District Judge.

 On Motion For Preliminary Injunction

 This case concerns the deportation of three Vietnamese citizens (husband, wife, and child) from the United States. Petitioners are Doan Huu Khanh, the husband, and Nguyen Kin Lan Khanh, the wife. The husband, wife and child were admitted to the United States as exchange visitors under a program sponsored by the Agency for International Development. After their authorized stay expired in August, 1968, petitioners unsuccessfully sought to secure a waiver of the statutory requirement that they return to Vietnam and reside there for a period of two years before applying for an immigration visa or permanent residence. Their attempt to secure relief by way of a private bill passed by the Congress also failed. After this failure, and a failure to depart voluntarily, an order of deportation finally issued ordering petitioners to report for deportation on March 6, 1972. The instant action was commenced on the same day and a temporary restraining order issued enjoining the respondent, the District Director of Immigration and Naturalization, from deporting petitioners pending determination of their motion for preliminary injunction. However, for the reasons set forth below, that temporary restraining order is now vacated in all respects and the motion for preliminary injunction is denied on the ground that petitioners have failed to show any likelihood of success upon the trial or irreparable injury.

 From the inartfully drawn complaint, motion papers, and hearing of petitioners' motion it appears that petitioners are attempting to make two claims. The first claim appears to be that the District Director abused his discretion in denying a stay of deportation pending determination of the appeal from denial of their motion to reopen the deportation proceeding. The stay was apparently sought on the ground that petitioners now have one other child who was born in the United States during their stay and the petitioner-husband (who has a doctorate in education) now works for a firm in Middletown, New York which has defense contracts. The second claim appears to be that petitioners, deportation should be stayed by the District Director or this court pending determination of a second waiver application predicated on the same two grounds and based upon a 1970 amendment to the statute providing for waiver. This second application was filed after commencement of this action in April, 1972. Petitioners were advised by the Immigration Service to complete the application form as to certain questions and to supply certain documents. As of the date of the writing of this opinion, August 9, 1972, the court had not been advised of the status of the application or whether it had been granted or denied.

 When oral argument was heard on April 4, 1972, petitioners were given an extension of two weeks' time to submit a memorandum of law in support of their contentions. No memorandum was filed. By letter dated six days after the deadline of the extension, petitioners' counsel requested an additional week due to the illness of office personnel, which was granted. After several telephonic requests from this court's chambers for the memorandum, petitioner's counsel stated by telephone that his "old" memorandum (one which was never filed in court) was outdated due to statutory amendments, and he would submit a new one. This so-called new memorandum, which was submitted to the court one and one-half months after the second extension of time had expired, consisted of a covering letter enclosing Xerox copies of federal regulations that went into effect on March 23, 1972 regarding exchange visitors, and commentary on these regulations published by "Interpreter Releases: An Information Service on Immigration, Naturalization and Related Problems." The "memorandum" contained no discussion of petitioners' case whatsoever. *fn1"

 Due to the success of petitioners' counsel's dilatory tactics, the temporary restraining order entered in this case on March 6, 1972 has now been in effect for over four months, and this court has still received no memorandum of law to elucidate petitioners' claims.

 Furthermore, by a cryptic letter dated April 24, 1972, counsel for petitioners advised the court that petitioners had reapplied for waiver of the two-year residency requirement of 8 U.S.C. § 1182(e), discussed below at pp. 1252-1253. This is a tardy reapplication, the grounds for which appear to be events that occurred in May, 1971, and September, 1971.

 Lacking the cooperation of petitioners' counsel, this court has construed petitioners' hastily drawn papers as best it can, with the aid of an affidavit and able memoranda of law submitted by the government on behalf of respondent.

 Petitioners Doan Huu Khanh and Nguyen Kin Lan Khanh are both Vietnamese citizens born in Vietnam. Doan Huu Khanh came to the United States from Vietnam most recently in December, 1965, on an exchange program under Section 101(a)(15)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(J), *fn2" to obtain a doctorate in education. He received financial assistance from the Agency for International Development at the request of the Government of South Vietnam. His wife and child joined him in the United States in March, 1967. After a number of extensions of their stay were granted, *fn3" petitioners were ultimately authorized to remain in this country until August 30, 1968.

 In December, 1968, petitioners made application for waiver of the requirement that aliens admitted as nonimmigrant exchange visitors return to their country of citizenship, or of last residence, for two years before applying for adjustment of their United States immigration status.

 The current version of the relevant statutory provision, 8 U.S.C. § 1182(e), provides, in pertinent part:

 
"No person admitted under section 1101(a)(15)(J) of this title . . . whose (i) participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States . . . shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 1101(a)(15)(H) or section 1101(a)(15)(L) of this title until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States: Provided, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawful resident alien), . . ., the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest: . . . *fn4"

 Petitioners' aforesaid 1968 application was denied on the grounds that the husband's services were required in Vietnam. (See letter of January 13, 1970 from Service ...


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