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January 9, 1975

BERNARD STOKES, FAY STOKES, CHARLES COOK, HILDA COOK, on behalf of themselves and all other persons similarly situated, Plaintiffs,

The opinion of the court was delivered by: BRIEANT



 Plaintiffs seek a preliminary and permanent injunction and a declaratory judgment declaring 8 U.S.C. §§ 1154, 1225 and 1357, as well as the regulations found in 8 C.F.R. §§ 103.2 and 204.1(a), and Immigration and Naturalization Form I-130 ("I-130") promulgated thereunder, unconstitutional on various grounds as allegedly violative of Bill of Rights liberties.

 Plaintiffs Bernard Stokes and Charles Cook are citizens of the United States. Both Stokes and Cook met women who were citizens of Guyana, visiting the United States on non-immigrant visas. The two couples were each married in civil ceremonies. Shortly thereafter, Stokes and Cook each applied for classification of his wife as an "immediate relative" and thereby exempt from the annual quota restrictions on immigration. Both couples underwent investigations by Immigration and Naturalization Service ("INS") officers. The procedures followed are challenged in this action.

 During the investigation of his application, Stokes withdrew his request in behalf of his wife under facts claimed to have constituted compulsion by INS officers; the Stokes application was then referred to INS's criminal investigators where it now remains under investigation. The Cook application also resulted unfavorably to plaintiff, but the precise cause is pleaded as unknown. Cook claims he did not understand the documents he signed, which apparently withdrew the application.

 The plaintiffs also seek to maintain this suit as a class action on behalf of all United States citizens and their alien spouses residing in the United States who have filed, with the New York District Office of INS, Form I-130, petitions for designation as an "immediate relative", with consequent preferential immigration status.


 Jurisdiction is premised on several grounds. It is alleged that § 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, confers jurisdiction upon this Court in a suit seeking declaratory and injunctive relief against the enforcement of a provision of that subchapter. Although the suit is not a "cause . . . arising under" those provisions of the statute in a strict sense, nonetheless, it appears that jurisdiction is conferred by that statute. See Faustino v. Immigration and Naturalization Service, 302 F. Supp. 212 (S.D.N.Y. 1969), aff'd, 432 F.2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921, 27 L. Ed. 2d 824, 91 S. Ct. 909 (1971). Jurisdiction is also based on 28 U.S.C. § 1331, as a civil action "wherein the matter in controversy exceeds the sum of $10,000 . . . and arises under the Constitution, laws, or treaties of the United States." Plaintiffs each seek $15,000 compensatory damages and $100,000 punitive damages for the emotional pain, suffering and humiliation resulting from the alleged unconstitutional acts of the defendants. Jurisdiction lies under this statute. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). This Court need not determine plaintiffs' other and additional jurisdictional contentions.

 The Government contends that this Court lacks subject matter jurisdiction because the plaintiffs have failed to exhaust their administrative remedies. But plaintiffs attack the constitutionality of the administrative procedure which the Government insists must be exhausted. Furthermore, this controversy arises from INS's inquiry into the bona fides of the plaintiffs' marriages, which necessarily involves a factual determination. Plaintiffs' principal grievance is that this administrative adjudication is conducted without opportunity for a fair hearing. Further pursuit of the administrative procedure would not give the plaintiffs a de novo hearing. Additionally, the validity of the entire I-130 procedure could not be challenged in the immigration proceedings. This Court fails to see how this administrative remedy can be considered adequate for purposes of the exhaustion rule. See Finnerty v. Cowen, 508 F.2d 979, (2d Cir., 1974). Deferring to the immigration authorities in this instance would not yield a more complete evidentiary record. Finally, plaintiffs seek compensatory and punitive damages, remedies which could not be awarded in the administrative process. Even if immediate relative status was granted on administrative appeal, the cause of action for prior acts of INS officers would not be mooted. See Plano v. Baker, 504 F.2d 595 (2d Cir. 1974).

 This Court has subject matter jurisdiction without regard to any claimed necessity to exhaust administrative proceedings.


 Plaintiffs move to convene a three-judge district court, pursuant to 28 U.S.C. § 2282, claiming that this is a suit for an "injunction restraining the enforcement, operation or execution of [an] Act of Congress for repugnance to the Constitution of the United States . . .." In determining whether to convene a statutory three-judge court, the Court is "limited to determining whether the constitutional claim raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute." Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 8 L. Ed. 2d 794, 82 S. Ct. 1294 (1962). See Nieves v. Oswald, 477 F.2d 1109, 1111 (2d Cir. 1973).

 In their complaint, plaintiffs attack 8 U.S.C. § 1154 and the applicable administrative regulations as being violative of their Fifth Amendment rights of procedural due process. Specifically, it is alleged that the adjudicative and investigatory hearings fail to meet the standards required by the Constitution in that there is no opportunity for confrontation or cross-examination of adverse witnesses, the applicant's counsel is relegated to an ineffective role, and minutes of the hearings are not transcribed.

 Section 204 of the Immigration and Nationality Act, 8 U.S.C. § 1154 does not prescribe the procedures to be followed in the determination of eligibility for "immediate relative" status. Rather, that statute delegates to the Attorney General the authority to prescribe by regulation the information required. The statute further provides that "after an investigation of the facts in each case," the Attorney General shall determine whether preferential status should be granted. The application procedure is governed by 8 C.F.R. §§ 103.2, 204.1(a) and ...

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