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PELUPO DE TOLEDO v. KILEY

July 21, 1977

Amalia Sabina PELUPO de TOLEDO, Plaintiff,
v.
Maurice F. KILEY, District Director Immigration and Naturalization Service of New York, Defendant



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

 MISHLER, Chief Judge.

 Petitioner, by order to show cause dated June 24, 1977, applies for an order staying her deportation. The petitioner bases her right to relief on statements contained in applications for: (a) a stay of deportation (filed June 15, 1977); and (b) the suspension of deportation (filed June 20, 1977). Two days prior to the June 29, 1977 oral argument, the district director denied petitioner's application for a stay. The petition for suspension pends undecided as of the date of this memorandum of decision. *fn1" The following facts are admitted or not challenged for the purpose of this proceeding:

 On June 7, 1970, the petitioner entered the United States from Columbia on a visitors visa valid for a period of thirty (30) days. Approximately two weeks later, on June 25, 1970, she took employment at Barney's Clothes, Inc. in violation of the conditions of entry. She overstayed the period of her visit and never left the country. On May 18, 1973, the Immigration and Naturalization Service ("INS") served notice on petitioner to show cause why she should not be deported. Shortly thereafter, on June 1, 1973, petitioner married one Manuel Toledo. She nevertheless appeared at the scheduled hearing before an INS Special Inquiry Officer on June 12, 1973. Petitioner admitted that she was here unlawfully, and pursuant to her request, was granted the privilege of voluntary departure until September 12, 1973, in lieu of deportation. Petitioner then left the hearing only to file an application, that very same day, for the issuance of an immigrant visa based on her marriage to a United States citizen (Form 1-130).

 INS questioned the bona fides of the marriage. Several requests were made for interviews, but petitioner and her spouse failed to respond. *fn2" Instead, petitioner continuously changed her address without notifying the district director, thus frustrating the efforts of INS investigators. While the search went on, petitioner gave birth to a child -- Marylin Pastrana -- on March 6, 1976. Although Manuel Toledo allegedly fathered the child, petitioner claims he abandoned her during pregnancy. The birth certificate indicates that one, Camilo Pastrano, a friend, was the father.

 Petitioner's 1-130 application was finally dismissed for lack of prosecution on June 21, 1976. A warrant of deportation issued on January 17, 1977, and on May 4, 1977, petitioner was apprehended by INS investigators. The delay in deportation from that day until the institution of this proceeding was occasioned by petitioner's failure to supply travel documents. She is presently in custody pending the determination of the instant petition.

 Petitioner claims a right to a stay pending the determination of her application for suspension of deportation on two grounds: (1) that she comes within the class of aliens described in Silva v. Levi, Docket No. 76 C 4268, N.D.Ill. March 10, 1977); and (2) that she ". . . is prima facie eligible for the benefits of . . ." Section 244(a)(1) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254(a)(1). *fn3"

 SCOPE OF REVIEW

 The petition seeking review of the district director's refusal to stay the deportation order on the ground that such administrative action was ". . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706, is based, in turn, on a claim that the application for suspension of deportation is meritorious. Though respondent points to petitioner's failure to exhaust administrative remedies before filing the petition, Florentine v. Landon, 206 F.2d 870, 871 (9th Cir. 1953), cert. denied, 347 U.S. 927, 74 S. Ct. 530, 98 L. Ed. 1080 (1954) the court assumes that respondent prefers to reach the merits. See McGee v. United States, 402 U.S. 479, 483-484, 91 S. Ct. 1565, 1568-69, 29 L. Ed. 2d 47 (1971); McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969).

 The district director is vested with discretionary authority to stay an order of deportation. *fn4" The district director may also within his discretion deny suspension of deportation where aliens deliberately violate immigration laws and orders, United States ex rel. Ciannamea v. Neelly, 202 F.2d 289 (7th Cir. 1953), or delay deportation in order to establish the necessary qualifying residence period. Goon Wing Wah v. Immigration and Naturalization Service, 386 F.2d 292 (1st Cir. 1967). The district court, in turn, has habeas corpus jurisdiction to review the denial of any stay. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). That review is limited, however; the court may inquire only as to ". . . whether there has been any abuse of administrative discretion." Foti v. Immigration and Naturalization Service, 375 U.S. 217, 228, 84 S. Ct. 306, 313, 11 L. Ed. 2d 281 (1963). The district director's denial constitutes an "abuse of discretion" ". . . if it [is] made without a rational explanation, inexplicably [departs] from established policies, or [rests] on an impermissible basis such as an invidious discrimination against a particular race or group . . . ." Bolanos v. Kiley, 509 F.2d 1023, 1026 (2d Cir. 1975), quoting Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966). *fn5"

 SILVA V. LEVI -- RESTRAINING PROVISION

 Petitioner's claim that she comes within the class of persons under the protection of Judge Grady's order of March 10, 1977 is rejected. The class is defined as "[all] persons from the Western Hemisphere who have priority dates between July 1, 1968 and December 31, 1976 inclusive." The preference granted Western Hemisphere aliens by Section 245(c) of the Immigration and Nationality Act, 8 U.S.C. § 1255(c), does not give automatic permanent status. A petition for such must be filed in accordance with the requirements of 8 C.F.R. § 204.1 either by an American citizen or an alien lawfully admitted for permanent residence, and the petition is considered only after investigation by the Attorney General to determine whether the facts stated in it are true, 8 U.S.C. § 1154(b). Petitioner's application for priority status was dismissed for failure to prosecute. She is not a member of the class defined in Silva v. Levi.

 FAILURE TO DEPART VOLUNTARILY AND DILATORY TACTICS EMPLOYED

 The administrative record indicates that at the June 12, 1973 deportation hearing, petitioner represented that she had a paid ticket to return to Columbia via Avianca Airlines. Upon a finding of deportability by a Special Inquiry Officer, she was granted voluntary departure until September 12, 1973. *fn6" At the time of the hearing she reported her address as 104 Hicks Street (Apt. 15D), Brooklyn, New York. She was later interviewed on October 15, 1974, at her place of employment, where she advised the investigator that she lived at 1731 Harrison Avenue, Bronx, New York. The investigator called at that address on December 27, 1974, but petitioner stated her husband had already left for work; that she did not know where to contact him; and that she could not submit to an interview. Letters to petitioner and her attorney dated January 12, 1976, and April 14, 1976, requesting ...


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