The opinion of the court was delivered by: WYATT
This is a motion by plaintiff for summary judgment and a cross-motion by defendant District Director for the same relief. Fed. R.Civ.P. 56.
Plaintiff Zaoutis is an alien. He entered this country lawfully on November 6, 1963, as a non-immigrant visitor. He worked for a time for the Greek Government as a doorman at the consulate in New York City.
On January 10, 1965, Zaoutis married Camacho, a United States citizen.
On August 25, 1965, the status of Zaoutis was "adjusted" by the Service to that of an "alien lawfully admitted for permanent residence". 8 U.S.C. § 1255(a) The basis for the adjustment was his marriage to a United States citizen.
On April 5, 1967, Zaoutis got a Mexican divorce from Camacho and on October 1, 1967 he married Gaglia, a Greek citizen.
The Service then conducted an investigation of fraudulent marriages to secure immigration benefits. Eventually the Service believed it had sufficient evidence to establish that the marriage of Zaoutis and Camacho was fraudulent.
The law provides (8 U.S.C. § 1256(a)) in relevant part as follows:
"If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 1255 . . . of this title . . . to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person . . . and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made."
Under date of May 20, 1970, the District Director of the Service served Zaoutis with a "notice of intention to rescind" his adjustment of status. The procedure was as provided in Regulations, specifically 8 CFR 246.1. In this notice there is no statement that it had appeared "to the satisfaction of the Attorney General" [or a designated representative, such as the District Director] that Zaoutis "was not in fact eligible for . . . adjustment of status". On the contrary, the notice states that it is "alleged" and that it is "charged" that Zaoutis was not in fact eligible for adjustment of status. The Regulations (8 CFR 246.1), however, provide that "if it appears to a district director that a person residing in his district was not in fact eligible for the adjustment of status made in his case, a proceeding shall be commenced by the service upon such person of a notice of intention to rescind . . .", etc.
The quoted Regulation partly tracks the language of the statute (8 U.S.C. § 1256(a)) as to it appearing that the alien "was not in fact eligible . . .", etc. and substitutes "district director" for "the Attorney General" as used in the statute. It seems clear, however, that the determination and notice by the district director which commences the proceeding is not a delegated determination under the statute which requires rescission of the adjustment of status. The object of the proceeding under the Regulations is to determine whether the alien "was not in fact eligible for such adjustment of status" (8 U.S.C. § 1256(a)), a determination made for the Attorney General by the Board of Immigration Appeals after an initial decision of a special inquiry officer. 8 CFR 3.1, 246.6, 246.7
Under date of June 10, 1970, counsel for Zaoutis requested a hearing, asked to be either before or after the period June 29-July 27, 1970, when counsel would be out of the country. No hearing was set by the Service, however, in part because, we are told, there was "a request by a Bar ...