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ABDUR RAHIM v. MCNARY

July 19, 1993

ABDUR RAHIM, Plaintiff
v.
GENE McNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants.



The opinion of the court was delivered by: LEONARD B. SAND

 SAND, J.

 The plaintiffs in these twenty-seven consolidated cases are undocumented aliens who applied for, and were denied, temporary residence under the Special Agricultural Worker ("SAW") provisions of the Immigration Reform and Control Act of 1986 ("IRCA" or the "Reform Act"), 8 U.S.C. § 1160. This action involves a challenge to two Immigration and Naturalization Service ("INS") regulations which provide, in part, that motions to reopen a proceeding or reconsider a decision "shall not be considered." See 8 C.F.R. § 210.2(g), § 103.5(b) (1993). Plaintiffs claim that the challenged regulations are inconsistent with IRCA.

 The defendants have moved pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the complaints. Because we conclude that the challenged regulations are consistent with IRCA, the defendants' motion to dismiss is granted.

 STATUTORY AND REGULATORY BACKGROUND

 Title III of the Immigration Reform and Control Act of 1986 required the Attorney General to adjust the status of any alien farmworker who could establish that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986, provided that the alien could also establish his or her admissibility in the United States as an immigrant. 8 U.S.C. § 1160(a). An alien granted SAW status under IRCA would first become a temporary resident, see id., and eventually could obtain the status of permanent resident. See 8 U.S.C. § 1160(a)(2); see generally McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 484-86, 112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991). As is customary, Congress delegated to the Attorney General authority to issue detailed regulations that would govern implementation of the Act.

 The Reform Act provides that applications for SAW status must be filed with the INS Legalization Office ("LO") or with a Qualified Designated Entity which will forward the application to the appropriate LO. 8 U.S.C. §§ 1160(b)(1), (2), (4). The LO reviews each application for completeness, see 8 C.F.R. § 210.1(d) (1993), and then interviews the applicant. 8 C.F.R. § 210.2(c)(2)(iv) (1993). After the interview, the INS examiner recommends approval or denial of the application. The file is then forwarded to one of the four INS Regional Processing Facilities ("RPFs") for final review and decision.

 If the INS examiner recommended that the application be approved, and if the RPF concurs, the applicant is notified that the application has been approved. If the examiner recommended a denial and the RPF concurs, a notice of intent to deny is sent to the applicant. In such notice, the applicant is advised of the reasons for the denial, and is given an opportunity to rebut and submit further documentation in support of the application. If after receiving a response from the applicant, the RPF determines that the application should be denied, the applicant is notified of the denial and of the right to appeal.

 Administrative and Judicial Review

 The provisions governing administrative and judicial review "respecting an application for adjustment of status" under IRCA's SAW program are found in 8 U.S.C. § 1160(e). *fn1" Pursuant to IRCA's instruction that the Attorney General "establish an appellate authority to provide for a single level of administrative review," 8 U.S.C. § 1160(e)(2)(A), the Legalization Appeals Unit ("LAU") was created to hear administrative appeals of denials of SAW applications. Although review by the LAU is based on the administrative record established "at the time of the determination on the application," 8 U.S.C. § 1160(e)(2)(B), the applicant may submit for the LAU's consideration any "additional or newly discovered evidence as may not have been available at the time of the determination." *fn2" Id.

 If the LAU determines that the denial is correct, it will issue a final notice of denial. Pursuant to § 1160(e)(3)(A), judicial review of such a denial is limited to review of an order of exclusion or deportation under 8 U.S.C. § 1105a. The statute further provides that judicial review will be based solely upon "the administrative record established at the time of the review by the appellate authority," i.e., by the LAU. 8 U.S.C. § 1160(e)(3)(B). In addition, the findings of fact and determinations contained in the record are "conclusive" unless the applicant can demonstrate either an abuse of discretion or that the findings are "directly contrary to clear and convincing facts contained in the record considered as a whole." Id.

 Motions to Reopen

 The text of Title III of IRCA does not mention motions to reopen. Nevertheless, regulations enacted pursuant to IRCA expressly provide that motions to reopen a proceeding or reconsider a decision "shall not be considered." See 8 C.F.R. § 210.2(g), § 103.5(b) (1993). However, the regulations do allow the director of the RPF to "sua sponte reopen any proceeding . . . and reverse any adverse decision." Similarly, the Chief of the LAU may "sua sponte reopen any proceeding . . . and reconsider any decision" rendered in a proceeding before the LAU. The challenged regulations are set forth in the margin. *fn3"

 Although the INS maintains that it is not required under IRCA to entertain motions to reopen, it claims that it "does not ignore such motions." Letter to the Court from A.U.S.A. Kekatos, June 14, 1993 at 2. Specifically, the defendants state:

 
The INS does not ignore motions [to reopen], although it would be fully within its rights to do so. The Director of the LAU reviews the motion (or request) and any attached documents to decide whether there is any merit to the request. If the documents submitted convince the LAU's Director that there is the remotest possibility that the LAU made an error or did not consider a brief or evidence that was timely submitted, she will request the legalization ...

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