institutional interests present favoring exhaustion. Despite plaintiff's in forma pauperis status, plaintiff cannot claim to be in danger of suffering irreparable harm as a result of being unable to secure immediate judicial review. Indeed, plaintiff waited four years before bringing this action. Further, the INS is competent to adjudicate the question of whether plaintiff substantially violated the conditions of the bond and is empowered to grant the relief plaintiff seeks. Finally, there is no suggestion that the relevant administrative body is biased or has otherwise predetermined the issues presented. See McCarthy v. Madigan, 112 S. Ct. at 1087-88 (setting forth the three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion).
Plaintiff contends that the notice of the breach determination did not adequately apprise her of the necessity of filing an appeal and that therefore her interests outweigh the institutional interests favoring exhaustion. She argues that in balancing the interests, this Court should follow the holding of Ciniglio. However, plaintiff mischaracterizes the holding in that case. According to plaintiff, the Ciniglio court held that it had jurisdiction over the bond claim of Ciniglio, the alien, despite Ciniglio's failure to exhaust administrative remedies on the grounds that Ciniglio did not receive clear notice of the necessity of administratively appealing the breach determination and that Ciniglio had an overriding interest in a judicial resolution because the period within which to appeal had lapsed. (Mem. in Opp'n, at 9-10.) However, in Ciniglio the sufficiency of the notice provided by the bond breach determination form itself was not in issue. Rather, Ciniglio did not receive any notice whatsoever of the breach determination. In addition, the bonding company that posted the bond on behalf of Ciniglio failed to appeal the breach determination, thereby forfeiting Ciniglio's right to appeal without his knowledge. The company then successfully sued Ciniglio for the amount of the bond. The court found that because the period for taking an administrative appeal had passed, Ciniglio had a significant interest in a judicial resolution. The court found further that the agency had no countervailing interest in making a factual record because the parties in Ciniglio presented a joint stipulation of facts to the court. Ciniglio, 1991 WL 276081, at *1-3.
Moreover, in Ciniglio the plaintiff sought a declaratory judgment pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"). Under section 704 an administrative appeal is not a prerequisite to judicial review of agency action unless "the agency otherwise requires by rule and provides that the action meanwhile is inoperative." 5 U.S.C. § 704 (1977); see also Ciniglio, 1991 WL 2760181, at *2; Stuyvesant, 407 F. Supp. at 1204. Construing section 704, the Supreme Court recently held that in actions brought under the APA, federal courts may not impose an exhaustion requirement where exhaustion is not expressly required by statute or agency rule. See Darby v. Cisneros, 125 L. Ed. 2d 113, 113 S. Ct. 2539, 2548 (1993). However, the Supreme Court clearly stated that the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA. See Id.
Finally, the Court is unpersuaded by plaintiff's argument that requiring exhaustion is inappropriate because the bond breach notice violates the Due Process Clause of the United States Constitution. The Court concludes that because plaintiff did not exhaust her administrative remedies, the Court should decline to assume jurisdiction to review her claims. Accordingly, the complaint is dismissed. Plaintiff may wish to return to the agency to file a motion to reopen the proceeding pursuant to 8 C.F.R. § 103.5.
For the foregoing reasons, defendants' motion for summary judgment dismissing plaintiff's complaint is granted.
Dated: Brooklyn, New York
December 14, 1993
RAYMOND J. DEARIE
United States District Judge