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YIM TONG CHUNG v. SMITH

August 1, 1986

YIM TONG CHUNG, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, et al., Defendants



The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J. :

FACTS

 The fifteen plaintiffs in this action are natives and citizens of the People's Republic of China ("PRC") who are currently in this country. Each plaintiff had apparently *fn1" received a passport from PRC authorities *fn2" and then applied for and received a non-immigrant visa from United States ("U.S.") consular officials in China. *fn3" See Affidavit of Christine Petersen ("Petersen Aff.") at PP 2-3, 11-22, & Ex. A. Thirteen of the plaintiffs applied for and obtained tourist visas, *fn4" and the other two applied for and obtained non-immigrant student visas. Between 1980 and 1982, following issuance of these non-immigrant visas, the plaintiffs were admitted to the United States, and authorized to remain for varying specified periods of time. *fn5"

 A majority of the plaintiffs remained in the United States beyond the period of their authorized admission, see id. at PP 11-22, & Ex. A, thus rendering themselves deportable pursuant to section 241(a)(2) of the Act, 8 U.S.C. 1251(A)(2). These plaintiffs filed applications for political asylum, see 8 C.F.R. § 208.1, with defendant Sava, the New York District Director for the Immigration and Naturalization Service ("INS"). The other plaintiffs filed asylum applications prior to the expiration of their authorized admissions. These applications were submitted pursuant to the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 et seq., and its implementing regulations. See 8 U.S.C. § 1158(a)(1982); 8 C.F.R. § 208.1 et seq.

 Each such asylum application, along with any supporting documents, was submitted on INS Form I-589. Each plaintiff then appeared with his attorney or designated representative for a personal interview with an INS officer, at which "each plaintiff . . . testified under oath in support of his claim that he was qualified for asylum as a person who was unable or unwilling to return to China because of persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group." See Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pl. Memo") at 2. Following that interview, each plaintiff was granted employment authorization pursuant to 8 C.F.R. § 109.1(b)(2) as a "non-frivolous" asylum applicant, and an advisory opinion was requested from the State Department's Bureau of Human Rights and Humanitarian affairs ("BHRHA") pursuant to 8 C.F.R. 208.7 and INS Operations Instruction ("OI") 208.9b. See Petersen Aff. at P 5.

 Following consideration of the applications, INS notified each plaintiff, in a letter issued by defendant Sava, of its intention to deny the asylum application. Attached to each such letter was an advisory opinion from the State Department's BHRHA. Each letter informed the asylum applicant of a 15-day period within which the applicant could submit evidence in rebuttal of that opinion.

 There is some dispute as to whether each plaintiff submitted a rebuttal statement within the time allotted. Compare Pl. Memo at 4 with Defendants' Memorandum of Law in Support of Government's Motion to Dismiss and/or for Summary Judgment ("Def. Memo") at 12-13. At any rate, following the submission of rebuttal evidence, if any, each plaintiff received a letter from defendant Sava denying the asylum application and terminating employment authorization under 8 C.F.R. § 109.1(b)(2).

 These decisions of the District Director also advised the plaintiffs that their applications for asylum could be renewed in deportation proceedings before an Immigration Judge. See, e.g., Ex. D to Complaint. Plaintiffs were also advised that in those proceedings they could apply for withholding of deportation pursuant to Section 243(h) of the Act, 8 U.S.C. § 1253(h). See, e.g., Ex. D to Complaint. *fn6" By written submission dated January 9, 1984, plaintiff Gang Wang specifically stated, through his present attorneys, that he wished "to renew his request for political asylum before the Immigration Judge." See Petersen Aff. at Ex. C.

 With one exception, *fn7" , deportation proceedings have been instituted against the plaintiffs. See Blackman Aff., supra note 1, at PP 3 16. These proceedings are at different stages before various Immigration Judges. *fn8" See id. at PP 5, 6, 11, 12, 13, 15; see also Dufresne Aff., supra note 1, & Exs. A-E. Plaintiffs Fu Shen Chen and Gang Wang failed to appear at their scheduled deportation hearings. See Blackman Aff. at PP 9, 14. Gang Wang apparently arranged for a rescheduled deportation hearing and, in the alternative, renewed his application for political asylum. See Dufresne Aff. at P 10.

 On May 4, 1984, the plaintiffs initiated the instant action by filing a "Complaint For Declaratory And Permanent Injunctive Relief." See Complaint at 1. *fn9"

 
Plaintiffs . . . seek review of the decisions of the Immigration & Naturalization Service (INS) denying their applications for political asylum on the grounds that these "decisions" were prejudged, not rendered on an individual basis, and based upon impermisslbe State Department adjudications and factors unrelated to the circumstances of the individual cases, in violation of their rights under statute and regulation and to due process of law.

 See Complaint at P 1.

 Defendants have filed a "motion to dismiss [the complaint] and/or for summary judgment," contending that: (1) plaintiffs' claims should not be entertained by this Court, or in the alternative, that the District Director's denial of asylum should be sustained; and (2) plaintiffs' claims with respect to work authorization should be dismissed for lack of subject matter jurisdiction and failure to state a claim. Because the Court has considered matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b)(6). For the reasons which follow, the Court concludes that defendants' ...


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