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January 25, 1995

BLAIR MERSEREAU, Petitioner, -vs- JOHN J. INGHAM, District Director, US Immigration and Naturalization Service, Buffalo District, Respondent.

JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN


 The factual background is not seriously in dispute. Blair Mersereau, a Canadian citizen, obtained status as a conditional permanent resident alien on April 12, 1989, following his marriage to a United States citizen on August 30, 1988. The couple lived in Holliston, near Boston, Massachusetts. The marriage was a stormy one. The couple separated in early 1990, and were divorced in 1992. On December 6, 1990, the INS Boston District received a letter from Mr. Mersereau's spouse stating that she did not wish to file a joint petition to remove the conditional basis of his permanent resident alien status. The letter suggested that Mr. Mersereau had married his spouse to obtain resident alien status. The bona fides of the marriage was thus placed in issue.

 On May 7, 1991, the INS Eastern Service Center in St. Albans, Vermont, mailed a Notice of Termination of Conditional Residence Status to Mr. Mersereau at his last known address, indicating that his permanent residence status was terminated as of April 13, 1991, for failure to file a petition under § 216(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1186a(c). On September 4, 1991, the INS Boston District issued an Order to Show Cause, charging him with deportability as a former conditional resident alien whose status had been terminated. Following an in absentia deportation hearing held in Boston on October 23, 1991, an Immigration Judge ordered him deported to Canada. The hearing and deportation order were subsequently determined to be ineffective when the INS learned that he had not been served with a copy of the Order to Show Cause.

 After separating from his spouse in 1990, Mr. Mersereau took up residence in Evansville, Indiana, where he has been living with a companion, Donna Gale Hurt. On October 25, 1994, following a trip to Canada, he attempted to enter the United States at Detroit, Michigan, claiming to be a returning resident alien. He was accompanied by a female whom he identified as his spouse. During INS secondary inspection, he admitted that he knew his alien registration card had expired in April, 1991, that he was divorced from his former spouse, and that he had done nothing with respect to his immigration status following the divorce. He was refused admission, and was permitted to withdraw his application for admission and return to Canada in lieu of commencement of an exclusion proceeding.

 On or about November 16, 1994, Mr. Mersereau mailed a Petition to Remove the Conditions on Residence ("waiver application," INS Form I-751) to the INS Northern Service Center in Lincoln, Nebraska. On November 21, 1994, he filed an application with the INS Buffalo District Office, requesting parole into the United States pending consideration of his waiver application (INS Form I-131).

 Mr. Mersereau's waiver application was received and filed at the INS Northern Service Center on December 2, 1994. A Notice of Action ("receipt notice," INS Form I-797) was issued on December 5, 1994. The receipt notice contained language advising Mr. Mersereau that his alien card had been extended for six months, with employment and travel authorized.

 On December 7, 1994, the INS Buffalo District Director, John J. Ingham, denied Mr. Mersereau's parole application, based on the record of termination of his conditional permanent resident status on April 12, 1991. Five days later, however, on December 12, 1994, Mr. Mersereau's attorney, William Z. Reich, received the waiver application receipt notice from the INS Northern Service Center. On the following day, Mr. Mersereau appeared at the Lewiston, New York, Port of Entry, accompanied by Mr. Reich, seeking admission as a returning resident based upon the language in the receipt notice that appeared to have extended his conditional resident status. He was again denied entry, on the grounds that he was an immigrant not in possession of a valid document authorizing entry. He was issued a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (INS Form I-122). An exclusion hearing has now been set for February 28, 1995.

 Immediately following the issuance of the I-122 to Mr. Mersereau at Lewiston, on December 13, 1994, Mr. Reich wrote to INS Buffalo District Director Ingham, again requesting that Mr. Mersereau be paroled into the United States. In his letter, Mr. Reich informed Mr. Ingham that Mr. Mersereau had been denied admission at Lewiston despite his possession of a waiver application receipt notice which appeared to extend his status as a conditional resident and to authorize travel. On December 16, 1994, Mr. Reich was informed by the Deputy Assistant Director of the INS Buffalo District Office that Mr. Ingham would not admit or parole Mr. Mersereau into the United States.

 Four days later, on December 20, 1994, Mr. Mersereau filed this action, seeking, inter alia, an order directing District Director Ingham to admit him to the United States upon presentation of his waiver application receipt notice or, in the alternative, an order directing Mr. Ingham to parole him into the United States during the pendency of the exclusion proceedings. In his motion for a preliminary injunction, he concedes that his waiver application was not filed within the time period prescribed by § 216 of the INA, 8 U.S.C. § 1186a, and INS regulations. He argues, however, that the District Director of the INS Northern Service Center had exclusive authority under the regulations to excuse the late filing, and that that authority was exercised by the issuance of the waiver application receipt notice. He maintains that the issuance of the receipt notice gave him the status of a waiver applicant to whom the INS had granted the benefits of a six-month extension of conditional permanent residence and authorization to work and to travel. He argues that the receipt notice itself constitutes documentation sufficient to support his read mission into the United States pursuant to INS regulations. Thus, he maintains, he was wrongfully denied admission at Lewiston on December 13, 1994, and wrongfully placed in exclusion proceedings.

 Mr. Mersereau also claims that he was wrongfully denied parole into the United States. Although less clearly argued, it is apparent that Mr. Mersereau's position is that in the absence of a grant of admission, District Director Ingham had, under the circumstances, an obligation to parole him into this country pending resolution of his immigration status.

 Mr. Mersereau claims that he is suffering irreparable harm by being excluded from the United States while his immigration status is being resolved. He points out that he has property in Indiana, where he has lived since 1990. He has been living there with his companion, Donna Gale Hurt, and has become a co-obligor on the refinancing of their house. The obligation is approximately $ 58,000.00, and the mortgage payments are $ 500.00 per month. Failure to make the payments could result in foreclosure and loss of the house. In addition, he owns a tractor-trailer, purchased with a loan on which the current obligation is approximately $ 45,000.00. Monthly payments on the loan are about $ 1,268.00. Because of his inability to enter the United States, he cannot get to his truck in order to make a living so that he can make the payments on his truck and his house. He is the only person who is qualified to drive the truck, and he is in danger of failing to meet his payments. If he cannot do this, he will lose both the truck and his business.

 In response, the INS maintains (1) that this court has no jurisdiction to entertain Mr. Mersereau's claims since, it contends, he has failed to exhaust his administrative remedies; (2) that Mr. Mersereau's claim that he is entitled to parole into the United States pending resolution of his status has been rendered moot, because on January 4, 1995, the INS Northern Service Center rejected his waiver application on the grounds that he was not eligible to file that application as a former conditional resident who had departed the United States; (3) that Mr. Mersereau has not made the requisite showing of irreparable harm to warrant a preliminary injunction, because irreparable harm cannot be shown by submitting to an agency proceeding (here, the exclusion proceeding); (4) that Mr. Mersereau cannot demonstrate a likelihood of success on the merits with regard to his claim for admission, because he cannot show that his waiver application would be likely to be accepted and approved by the INS; and (5) that he cannot demonstrate a ...

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