The opinion of the court was delivered by: STEWART
Plaintiff Pedrito Ubiera is a native of the Dominican Republic. On November 20, 1970, he married Anna Rodriquez, a permanent resident alien of the United States. On the basis of this marriage, he obtained an immigrant visa to the United States as a second preference immigrant under Section 203(a)(2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1153(a)(2). On August 30, 1972 he travelled to the United States and was admitted for permanent residence. Less than two years later, on June 6, 1973, the marriage was judicially terminated. Thereafter, on July 7, 1973, plaintiff married his present wife in the Dominican Republic and then adopted her son. His wife and son have remained in the Dominican Republic since that time.
In August, 1973, plaintiff petitioned the Immigration and Naturalization Service ("Service") to classify his new wife and son as his wife and son for immigration purposes so that they could enter the United States, as he had done, as second preference immigrants under Section 203(a)(2) of the Act. The Service approved this preference petition and its approval was forwarded to the United States Consul in Santo Domingo, Dominican Republic.
Thereafter, on February 5, 1976, plaintiff's wife and child filed applications for second preference immigrant visas with the Consul in Santo Domingo. The Consul deferred final action on the application pending the results of an investigation which he requested the Service to conduct in regard to a possible violation by plaintiff of Section 241(c) of the Act, 8 U.S.C. § 1251(c). This section provides:
An alien shall be deported as having procured a visa or other documentation by fraud . . . if (1) hereafter he or she obtains any entry into the United States with an immigrant visa . . . procured on the basis of a marriage entered into less than two years prior to such entry of the alien and which, within two years subsequent to any entry of the alien into the United States, shall be judicially . . . terminated, unless such alien shall establish to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws; . . .
Since plaintiff comes within subparagraph (1) of this section, he may be deportable thereunder. Because of the low priority assigned to this type of investigation, the Service has not yet concluded the requested investigation.
In his amended complaint, served on December 27, 1977, plaintiff seeks (i) a declaratory judgment that defendants may not deport plaintiff or rescind his permanent resident status, and (ii) an order directing the Consul (defendant Devlin) to issue immediately decisions on the visa applications of plaintiff's wife and son upon the basis that plaintiff's previous marriage and permanent resident status are valid for immigration purposes.
Plaintiff and defendants have each moved for summary judgment (Rule 56, F.R.Civ.P.).
In his motion, plaintiff asserts that there is a limitations period of five years in Section 246(a) of the Act,
8 U.S.C. § 1256(a) and that this limitations period is applicable to plaintiff. The section is expressly applicable only to aliens who obtain their permanent residence under Section 245,
8 U.S.C. § 1255, by adjustment of status. Plaintiff obtained his status as a permanent resident, not by such adjustment of status, but by immigrating from abroad in August, 1972. At that time, plaintiff as a native of a Western Hemisphere country was not eligible for adjustment of status pursuant to Section 245(c) of the Act, 8 U.S.C. § 1255(c) (a restriction which was eliminated from the Act in October, 1976). Nevertheless, plaintiff claims that the equal protection principles inherent in the Fifth Amendment require that the five-year limitation period in Section 246(a) must be applied to aliens like himself who obtained by immigration a permanent resident status no different from that obtained by adjustment of status under Section 245. Therefore, plaintiff contends, he is no longer subject to deportation under Section 241(c), more than five years having elapsed since his entry in August, 1972. Accordingly, he seeks the relief sought in his amended complaint as described above.
Defendants make two contentions:
1. The Court lacks subject-matter jurisdiction to consider plaintiff's application for relief to the extent it concerns the Consular visa issuance process.
2. Plaintiff's Fifth Amendment claim does not present a justiciable controversy and fails to state a claim upon which relief may be granted.
In a recent decision, Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978), the ...