The opinion of the court was delivered by: GOETTEL
In this action for declaratory and injunctive relief, the plaintiffs, American citizen children represented by their alien parents, seek to have declared unconstitutional section 212(a)(14) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1182(a)(14), As amended by Pub.L. No. 94-571, 90 Stat. 2705 (October 20, 1976), and to enjoin its enforcement. The plaintiffs also seek an injunction directing the defendants to afford to their alien parents whatever permanent status or priority dates on the consular waiting lists necessary for those parents to become legal permanent residents of the United States. The defendants have now moved to dismiss the complaint, alleging lack of subject matter jurisdiction, failure to exhaust administrative remedies, and failure to state a claim upon which relief can be granted. The plaintiffs have cross-moved for summary judgment.
The plaintiffs in this action, all of whom are minors, were born in the United States between 1965 and 1977 and are citizens by reason of birth. U.S.Const. amend. XIV, § 1. Their parents are natives and citizens of independent countries in the Western Hemisphere who wish to obtain permanent resident status in the United States.
Under the terms of section 212(a)(14) of the Act an alien who wishes to enter the United States for the purpose of performing skilled or unskilled labor must obtain a certificate from the Secretary of Labor prior to admission. Until January 1, 1977, however, an exemption to the labor certification rule existed for parents from the Western Hemisphere of citizen children.
Upon establishment of entitlement under this section (by filing the appropriate forms), parents of such children would receive an exemption from the certification requirement and would be given a priority status on the consular waiting lists.
The exemption for Western Hemisphere parents of citizen children was repealed by Congress on October 20, 1976. Pub.L. No. 94-571, 90 Stat. 2705 (effective January 1, 1977).
Under the Act as amended, parents of a citizen child had to establish their entitlement to the exemption prior to January 1, 1977, or they would lose their privilege to this Western Hemisphere exemption and to the accompanying priority date.
The parents of the plaintiffs in the instant action all seemingly would have qualified for the exemption under section 212(a)(14) of the Act prior to January 1, 1977. Only two of them, however, allege that they took the necessary step of filing a form FS-497A with the American Consulate in the country of their origin so as to establish their entitlement to the exemption prior to the effective date of the amendment. These two, Rodriguez, parents of Martinez, and Perrault, claim that their forms were mailed prior to the effective date, although they were not received until after January 1. The defendants dispute these claims. The other plaintiffs' parents admittedly did not file the form.
The plaintiffs assert that they each have an "inborn" and "inalienable" right under section 212(a)(14) to have confirmed priority dates set for their parents, despite the failure to establish entitlements while the act was in force, and that no legislative change could strip them of these rights. In the alternative, they argue that the amendment to section 212(a)(14) is invalid under the Equal Protection Clause of the Fifth Amendment.
Jurisdiction in this action is premised upon several provisions, particularly section 279 of the Act, 8 U.S.C. § 1329, and on 28 U.S.C. §§ 1331 and 1361.
Section 1361 provides jurisdictional for the issuance of a writ of mandamus. For such writ to be issued, it is necessary for a court to find:
"(1) a clear right in the plaintiff to the relief sought;
(2) a plainly defined and preemptory duty on the part of the defendant to do the act in question; and
(3) no other adequate remedy available."
Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), Cert. denied, 411 U.S. 918, 93 S. Ct. 1555, 36 L. Ed. 2d 310 (1973). See Hsieh v. Kiley, 569 F.2d 1179 (2d Cir. 1978); Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11 (3d Cir. 1975). For jurisdiction to lie under this provision there must be some ministerial, non-discretionary duty which a defendant has failed to perform.
These standards have not been met in this case. Plaintiffs seek to compel the defendants either to issue a visa or to grant a priority date to enable their parents to obtain permanent resident status in the United States. The decision to issue a visa, however, is that type of discretionary conduct not within the scope of mandamus jurisdiction.
As the plaintiffs are owed no duty "so plainly prescribed as to be free from doubt," Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), ...