The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs, Amersi Enterprises, Inc., ("the corporation"), and
Salim Amersi, its president and chief executive officer, filed an
action on March 22, 1988, seeking a declaratory judgment pursuant
to 28 U.S.C. § 2202, which would reverse the INS' denial of
plaintiff Amersi's nonimmigrant visa petition and application for
change of nonimmigrant status. Additionally, plaintiffs sought a
declaratory judgment invalidating 8 C.F.R. § 214.2(1)(1)(ii)(B),
(C) (1988), as being an unconstitutional denial of L-1
nonimmigrant visa petitions to small businesses and to executives
and managers of small businesses.
Subsequent to the filing of this action, Amersi acquired
permanent residency status through the "lottery" for persons
seeking to enter the United States from certain countries.
Following this change in Amersi's status, defendant moved to
dismiss the action on the basis that plaintiff's obtaining an
immigrant status as a permanent resident "exceeds the demands of
the complaint and renders the claim beyond remedy, and therefore
moot." (Defendant's Motion to Dismiss, p. 2).
In support of its argument that the case is not moot, plaintiff
relies on Ross v. Marshall, 651 F.2d 846 (2d Cir. 1981). In
that case, an alien reapplied for a labor certification while an
appeal was pending on the INS' denial of the original
application. The Marshall court held that the new application
did not moot the case because all new applications were to be
handled on a first-come, first-served basis. Therefore, if
plaintiffs were to abandon their appeal, they would be put "in a
substantially less favorable position." Id. at 849. The parties
therefore retained a legally cognizable interest in the outcome
of the case.
Amersi Enterprises claims that it will also be in a
substantially less favorable position if its complaint is
dismissed and that the Marshall holding should apply. However,
this holding has no application here. While the plaintiff in
Marshall had not yet attained his desired status, Salim Amersi
has achieved permanent residency. The mere fact that the
corporation may some day wish to file a similar action on behalf
of other employees does not begin to compare to the plaintiff's
interest in Marshall.
Plaintiffs' reliance on Chadha v. INS, 634 F.2d 408 (9th Cir.
1980), aff'd, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317
(1983), is similarly misplaced. In Chadha, plaintiff had
married an American citizen, making him eligible for an immediate
relative petition while his appeal of an INS order was pending.
In holding that this eligibility did not moot plaintiff's case,
the court noted that "marriage confers neither permanent resident
status nor a guarantee thereof. Until an immediate relative
petition is filed, Chadha remains subject to a final order of
deportation." Id. at 417, fn 6. In contrast, Amersi's status is
permanent and in no danger of reversal.
Plaintiffs also suggest that their case is not moot in that it
is "capable of repetition, yet evading review." However, under
the two-part test set forth in Weinstein v. Bradford,
423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975), this claim
must fail. While it may be true that "the challenged action was
in its duration too short to be fully litigated prior to its
cessation or expiration," Id., thus meeting the first part of
the Bradford test, there is no "reasonable expectation that the
same complaining party would be subjected to the same action
again." Id. Amersi, having obtained permanent residency, can
never be denied that status by the INS. Nor can the corporation
be denied the benefit of his managerial services. Thus,
plaintiffs' claim does not fall within the "capable of
repetition, yet evading review" exception to the mootness
Finally, plaintiffs' suggestion that its case "resembles more a
`class action suit' which is governed by a less restrictive
standard for mootness" can be summarily dismissed. Their
pleadings in no way indicate any resemblance to a class action,
and there is no factual justification for this comparison.
The law under the Federal Declaratory Judgement Act,
28 U.S.C. § 2201, 2202, under which plaintiffs seek relief, is well
[T]he question in each case is whether the facts
alleged, under all the circumstances, show that there
is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and