806 F.2d at 1266, this Court considers whether the instant plaintiffs' inclusion of the word "willfully" in their complaint permits them to survive defendant's motion to dismiss. Because there are two crucial differences between Fano and the case at bar, this Court finds that it does not.
First, in Fano, it was the INS's unexplained fourteen month delay which prompted the Fifth Circuit's finding that the INS may have engaged in "willful, reckless and wanton" conduct. Id. Here, plaintiffs filed their applications less than one month before they instituted this litigation. It normally takes 120 days for the INS to obtain fingerprint clearance alone. (Plaintiffs' Memo at 2.) This Court thus finds that no delay can be attributed to defendant in this case. Accordingly, the INS's culpability in the two cases simply cannot be equated.
Second, and more importantly, the Fifth Circuit's determination that plaintiff in Fano could survive the INS's summary judgment motion was based solely on plaintiff's estoppel claim. Id. at 1264-66. To reiterate, Fano had argued that, because his aging out was caused by the INS's failure to follow its own procedures, the INS was estopped from relying on the fact that Fano was no longer a minor in refusing to approve his derivative application for status adjustment. Id. at 1264. In the case at bar, plaintiffs make no estoppel argument, as indeed they cannot, because Maldonado-Santos has not yet been harmed by the INS's decision not to expedite his application. Thus, although Fano's outcome is seemingly favorable to the instant plaintiffs, it rested upon grounds distinct from those at bar, and consequently is not persuasive authority. Accordingly, this Court finds that plaintiffs' case-law-based claim that the INS should have expeditiously processed their applications is meritless and should be dismissed.
2. Zheng v. INS
Zheng, the decision cited by defendant, also deals with an INS applicant who had aged out despite his efforts to expedite the disposition of his application. 933 F. Supp. at 338-341. When plaintiff in Zheng applied for adjustment of his immigration status, he was informed by the INS that it would take approximately sixty days to process his application because the INS must conduct fingerprint identification checks through the Federal Bureau of Investigation ("FBI") for all individuals over sixteen years of age who are seeking to adjust their immigration status. Id. at 339 (citing 8 U.S.C. § 1255 note 1994). In an effort to expedite his application, Zheng paid a fee to the FBI to obtain a copy of his FBI report. Id. Zheng's FBI report indicated that he had no arrest record. Id. Zheng had a copy of his FBI report delivered to the INS prior to his twenty-first birthday. Id. The INS, however, would not accept this report as satisfying its statutory requirement for FBI clearance. Id. Shortly thereafter Zheng turned twenty-one and aged out. Id. Zheng then brought an action in the United States District Court for the Southern District of New York seeking to have declared unlawful the INS's refusal to consider the FBI report he submitted. Id. The INS brought a motion to dismiss. Id.
In granting the INS's motion to dismiss, Judge Leisure relied almost exclusively upon the deference with which the judiciary must treat determinations made by the executive and legislative branches of government in the area of immigration. Id. at 340 (citing Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 1477-78, 52 L. Ed. 2d 50 (1977)). Judge Leisure explained that it is not the judiciary's role "to revamp the procedural system of the INS." Zheng, 933 F. Supp. at 340. Judge Leisure also distinguished Zheng from Fano : in Fano, plaintiff alleged "willful, wanton, and reckless conduct" by the INS for which the INS offered no explanation, while plaintiffs' complaint in Zheng contained no allegations of such conduct. Id. at 341. Judge Leisure concluded that "the fact that the INS followed a procedure, dictated by statute, of waiting for clearance from the FBI does not amount to a wanton, willful, and reckless delay." Id.
Plaintiffs in the instant case attempt to distinguish themselves from plaintiff in Zheng. They argue that plaintiff in Zheng asked Judge Leisure to "fashion a new remedy," and assert that they seek only an order requiring the INS to utilize an existing expedition procedure. (Belluscio Letter at 1); (Hearing Tr. at 11.) Specifically, plaintiffs suggest that this Court order the temporary waiver of the FBI background clearance of Maldonado-Santos, (Complaint P 13), on the grounds that the INS can post-audit Maldonado-Santos and rescind its approval of his application under Title 8, United States Code, Section 1256. (Belluscio Letter at Exh. 10.) In response, defendant claims that the relief plaintiffs seek in the instant case is in some ways more extreme than that sought in Zheng. (Hearing Tr. at 13-14.)
To reiterate, plaintiff in Zheng sought an order declaring unlawful the INS's refusal to use the FBI report that Zheng submitted instead of the one the INS would later obtain itself. Zheng, 933 F. Supp. at 339. Plaintiffs in the instant case go one step further, and suggest that this Court waive Maldonado-Santos' FBI background check, subject only to a post-audit after his application is approved. However, as Judge Leisure noted in Zheng, "the purpose of the background check is to ascertain that an applicant does not have a criminal record. It is not realistic to expect that those who do in fact have such records will not attempt to submit fraudulent documentation." 933 F. Supp. at 341. Indeed, it recently has come to light that a substantial number of individuals with criminal histories may have slipped through the INS's vetting procedures. See David Johnston, I.N.S. Chief Plays Down Fear that Many Criminals Got Citizenship, N.Y. Times, Oct. 30, 1996, at A15. This Court finds it imprudent to create another loophole to the INS's statutory mandate to conduct FBI background checks simply because time is short. This Court is loathe to provide those with criminal histories another backdoor to obtaining lawful residency in this country. If the INS chooses to exercise its discretion and utilize such a procedure, that is its prerogative. In the absence of such an exercise of discretion, however, this Court will not substitute its judgment for that of the administrative agency charged by Congress with overseeing the immigration process. Thus, this Court finds that defendant's reliance on Zheng is well-placed, and that plaintiffs' claim that they are entitled to expedited processing of their applications should be dismissed.
B. Due Process
Plaintiffs claim that the INS's refusal to expedite the processing of their applications deprived them of due process under the Fifth Amendment of the United States Constitution. (Complaint P 11.) Neither party submitted argument to this Court regarding this issue. However, this Court's research indicates that immigration policy in the United States need not conform--and historically has not conformed--to the constitutional safeguards applicable to American citizens. See Rahman, F. Supp. at 785; Matter of Longstaff, 716 F.2d 1439, 1442 (5th Cir. 1983), cert. denied, 467 U.S. 1219, 81 L. Ed. 2d 373, 104 S. Ct. 2668 (1984). "Congress can bar aliens from entering the United States for discriminatory and arbitrary reasons, even those [reasons] that might be condemned as a denial of equal protection or due process if used for purposes other than immigration policy to draw distinctions among people physically present within the borders of the United States." Longstaff, 716 F.2d at 1442 (footnote omitted). The constitutional requirements of
due process and of nondiscrimination exacted by the equal protection component of the due process clause do not limit the federal government's power to regulate either immigration or naturalization. Thus, the Constitution does not require our national immigration policy to be consistent with the prohibition of discrimination by federal agencies and by state governments and private persons.
Id. (footnotes omitted). Neither plaintiffs' submissions nor their oral arguments address these principles, and this Court sees no reason to depart from them here. As a result, this Court finds that defendant did not violate plaintiffs' Fifth Amendment due process rights, and that this claim should be dismissed.
C. Harsh Consequences
Finally, plaintiffs argue that the consequences of the INS's refusal to expedite their applications are sufficiently dire as to justify this Court in ordering the INS to expedite their applications. First, plaintiffs claim that if Maldonado-Santos is permitted to age out, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") would require him to leave the United States during his reapplication period. (Plaintiffs' Memo at 3.) It is unclear whether this assertion is true. However, this Court need not consider the accuracy of plaintiffs' characterization of the IIRIRA to find their argument flawed. The mere fact that the consequences of Maldonado-Santos' aging out are dire does not empower this Court to intrude upon an area committed to the INS's discretion. Moreover, if Congress, in exercising its extraordinary power over immigration, see, e.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 1477-78, 52 L. Ed. 2d 50 (1977), has determined that individuals such as Maldonado-Santos are to apply for residency from abroad, it is not for this Court to say otherwise.
Second, plaintiffs assert that if Maldonado-Santos' application is not processed immediately, Congress might eliminate sponsorships of adult children, thus rendering it impossible for Maldonado-Santos to obtain legal, permanent residency in the United States. (Hearing Tr. at 20.) This claim is purely speculative, and consequently, is unripe for judicial determination. See, e.g., O'Shea v. Littleton, 414 U.S. 488, 497-98, 38 L. Ed. 2d 674, 94 S. Ct. 669, 676-77 (1974). Additionally, as with plaintiffs' IIRIRA argument, simply because the consequences of an INS decision or an immigration statute are harsh does not, without more, create a cause of action for those adversely affected by such a decision or statute. Accordingly, this Court finds that plaintiffs' argument based on the alleged harm to Maldonado-Santos from defendant's refusal to expedite the processing of plaintiffs' applications should be dismissed.
D. Separation of Powers
An additional issue raised in this case, but which neither party addressed in its respective submission or oral argument, is the proper role of the courts in reviewing INS procedures and determinations. Nonetheless, this Court's own research regarding this issue finds that plaintiffs' request for an order expediting their application asks this Court to overstep its authority in three separate respects, all of which implicate our constitutional system of shared powers.
First, the statute authorizing Maldonado-Coronel's application for status adjustment reads:
The status of an alien who was inspected or admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such circumstances as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.