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DIMAREN v. INS

September 19, 1974

Felipe DIMAREN, a minor child by his natural mother, Maria Villanueva Diaz, and Maria Villanueva Diaz, Plaintiffs,
v.
IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants



The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 The court, pursuant to its Findings of Fact and Conclusions of Law dated May 15, 1973, preliminarily enjoined defendants from denying plaintiff Diaz a stay of deportation solely on the basis of a policy directive, which became effective on May 1, 1970, until either: (1) the determination of plaintiffs' motion for a permanent injunction or (2) thirty days had elapsed after the May, 1970 policy was published in the Federal Register as a proposed rule pursuant to the Administrative Procedure Act, 5 U.S.C. § 553. The court declared that, pursuant to Fed.R.Civ.P. 65(a)(2) it would order the trial of the permanent injunction consolidated with the hearing which had already been conducted unless the parties requested an opportunity to offer additional proof or argument.

 After considering the additional argument presented by the parties, the court denies plaintiffs' motion for a permanent injunction and dismisses the complaint. *fn1"

 In its Memorandum Opinion and Order dated December 19, 1973, the court scheduled a hearing on the question of the precise meaning of the May, 1970 policy and the weight attached to that policy by the defendant district director. The policy was directed to the weight which district directors should give to the fact that a Western Hemisphere alien applicant for a stay of deportation was the parent of a child or children born in the United States during the parent's stay in considering such applications. The policy statement indicated that stays should be granted only when "compelling factors" were present. *fn2"

 The court was of the view that if the policy statement left the district director free to consider any factors he deemed relevant in deciding whether to grant applications for stays of deportation, the policy statement might not be a rule within the meaning of 5 U.S.C. § 551(4) or might come within one of the exceptions set forth in § 553(b).

 The court holds that the Administrative Procedure Act, 5 U.S.C. § 551 et seq., governs the Immigration and Naturalization Service's processing of applications for stays of deportation. The A.P.A. governs all administrative proceedings except to the extent that another statute exempts the agency from coverage. 5 U.S.C. § 559. While the Supreme Court held in Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107 (1955), that the A.P.A.'s hearing requirements were superseded by § 242(b) of the Immigration Act in deportation hearings, the holding was based on a legislative history which made it clear that Congress intended not to make the hearing provisions of the A.P.A. directly applicable to hearings on deportability. The strongest indication of Congress' intention was the Immigration Act's ". . . detailed coverage of the same subject matter dealt with in the hearing provisions of the [A.P.A.] . . .." 349 U.S. at 307, 308, 75 S. Ct. at 761.

 The Immigration Act, however, does not provide hearing on rule-making procedures in connection with applications for stays of deportation and nothing in the legislative history suggests Congress intended to exempt such proceedings from the A.P.A.'s coverage.

 The court, nevertheless, concludes, after examining the May, 1970 policy statement, that, while the policy announced is a "rule" within the meaning of 5 U.S.C. § 551(4), *fn3" it is exempted from the rule-making requirements of § 553 since it was an interpretive rule or general statement of policy. 5 U.S.C. § 553(b)(A).

 The rule-making provisions of the A.P.A. should be generously construed. *fn4" However, only rules that have a "substantial impact on those regulated," that is, ordinarily, rules that change ". . . existing rights and obligations," are subject to the rule-making requirements of § 553. Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (2d Cir. 1972).

 The May, 1970 policy statement had no binding effect upon the district directors. The memorandum states that ". . . all districts are requested to review their local policies concerning cases of nonimmigrant aliens who have children born in the United States." (Emphasis added.) According to the memorandum, ". . . this instruction [is not] intended to restrict the district director's discretion to take action which would prevent separation of families or grant extensions of departure time in individual hardship cases." The district director is requested to ". . . review . . . [his] policies accordingly."

 It seems clear that the district director was left free to attach whatever weight he deemed appropriate to the new policy. While it might be anticipated that such a memorandum would have considerable impact on the policies of the district director, *fn5" the court cannot conclude that the memorandum altered the existing right of plaintiff Diaz to have her application granted in the discretion of the district director. *fn6"

 The next question is whether the district director's denial of plaintiff Diaz' application was improper because he considered himself bound by a policy statement which was not intended to have binding effect on the district directors.

 The denial of a stay of deportation can be set aside by a reviewing court only if the district director has abused his discretion, that is, if his decision was made "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group . . .." Li Cheung v. Esperdy, 377 F.2d 819, 820 (2d Cir. 1967); see also Wong Wing Hang v. I.N.S., 360 F.2d 715, 719 (2d Cir. 1966).

 Of course, the district director is required by 8 C.F.R. § 243.4 to exercise his discretion. An argument might be made that defendant district director, by considering himself bound by the policy described in the 1970 memorandum, improperly failed to exercise his discretion. However, the exercise of discretion involves the consideration of competing policies and ...


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