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MALDONADO-CORONEL v. MCELROY

November 1, 1996

Cesar MALDONADO-CORONEL and Juan Carlos MALDONADO-SANTOS, Plaintiffs, against Edward McELROY, District Director, Immigration and Naturalization Service, New York District Office, Defendant.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 This matter came before this Court pursuant to an Order to Show Cause signed by this Court, sitting in Part One, on October 17, 1996. This case originally was assigned to the Honorable Allen G. Schwartz, United States District Judge for the Southern District of New York. For reasons beyond his control, Judge Schwartz was unable to consider this action as quickly as the circumstances demanded, and this Court, sitting in Part One, "pinch hit" for Judge Schwartz.

 Edward McElroy ("McElroy"), District Director of the Immigration and Naturalization Service for the New York District Office ("INS") ("defendant") was ordered to show cause why the applications for the adjustment of immigration status of Cesar Maldonado-Coronel ("Maldonado-Coronel") and Juan Carlos Maldonado-Santos ("Maldonado-Santos") ("plaintiffs") should not be "expeditiously adjudicated on or before November 3, 1996." (Order to Show Cause Maldonado-Coronel v. McElroy 96 Civ. 7848 at 1 (Oct. 17, 1996).) This Court ruled on the issues raised in the Order to Show Cause at a hearing held on October 25, 1996, ("the hearing") and this opinion memorializes its ruling.

 BACKGROUND

 Maldonado-Coronel and his son, Maldonado-Santos, are Ecuadorian nationals residing in New York City. (Complaint, Maldonado-Coronel and Maldonado-Santos v. McElroy, 96 Civ. 7848 ("Complaint") PP 1, 7 (Oct. 11, 1996).) Plaintiffs sued McElroy as an individual and in his capacity as District Director of the New York District Office of the INS. Id. P 2. Plaintiffs alleged that, pursuant to Section 203(b)(3)(A) of the Immigration and Nationality Act ("the Act"), "an I-140 Immigrant Visa Petition" was filed by plaintiffs and approved by the INS on September 5, 1996. Id. P 6. Upon the approval of this petition, plaintiffs claim that Maldonado-Coronel became entitled to file an application for adjustment of status to that of "lawful permanent resident," and that his spouse and children under the age of twenty-one also became entitled to file applications for adjustments of their status to lawful permanent resident. Id. P 7; see 8 U.S.C. §§ 1101, 1153, 1255. Maldonado-Coronel, his spouse and children under the age of twenty-one, including Maldonado-Santos, all filed these applications on September 25, 1996. (Complaint P 7.) All of their applications were still pending as of the date of the hearing. Id. P 8.

 According to plaintiffs, Maldonado-Santos was born on November 4, 1975, and thus was in danger of turning twenty-one and aging out before the INS processed his application. Id. PP 6-7. Plaintiffs alleged that they took steps to assure that the INS would consider their applications on or before November 3, 1996, so that Maldonado-Santos would not age out. Id. Plaintiffs claimed that they made numerous requests of INS personnel to expedite their applications, and that the INS refused to do so. Id. P 10.

 Plaintiffs further stated that INS District Directors have the authority to expedite the application process in potential aging out situations, and that the INS has two procedures in place to expedite these sorts of cases. Id. PP 10-13. The first procedure is simply to expedite the applicant's background checks which are a component of the application process. Id. P 12. The second procedure plaintiffs allege to be available to the INS is a "post-audit." Id. P 13. A post-audit permits the INS to approve an application for status adjustment without previously verifying the applicant's background clearance. (Hearing Transcript Maldonado-Coronel v. McElroy 96 Civ. 7848 ("Hearing Tr.") at 9, 11 (Oct. 25, 1996).) If a subsequent background investigation uncovers information that would have precluded the application's approval, the INS is authorized to rescind the status adjustment within five years of its approval. Id. ; see also 8 U.S.C. § 1256. Plaintiffs assert that the INS commonly uses these procedures to expedite the application process in aging out cases. (Complaint P 14.)

 As evidence that defendant has the authority to expedite INS applications, plaintiffs submitted to this Court several items. Plaintiffs point to INS Operations Instruction ("OI") 105.10(c) which provides, in part, that "when an expeditious response is needed from the FBI or CIA because of an unforeseen emergency or other circumstances indicating a sound basis for urgency, stamp in bright green ink or write with a bright green felt-tipped pen the word 'SPECIAL' in the lower portion of the INS box." (Letter from Robert F. Belluscio, Esq., to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York, Maldonado-Coronel v. McElroy 96 Civ. 7848 ("Belluscio Letter") at Exh. 5 (Oct. 23, 1996).)

 In addition, plaintiffs offer printed copies of e-mail communications between their counsel and two other private immigration lawyers. The first such attorney, James D. Acoba ("Acoba") of Los Angeles, California, states that, after contacting the INS himself, he learned that "local districts DO have the authority to either request expedited clearances OR to approve on a post-audit basis. Memo is apparently coming out clarifying policy." (Belluscio Letter at Exh. 8. (capitalization in original).) The e-mail conversation with the second immigration lawyer, Michael E. Piston ("Piston") of Troy, Michigan, reads:

 
[Q.] Anyone have anything in writing or a citation for either: 1. Having District obtain fingerprint clearances on an expedited basis OR 2. Doing an adjustment on a post-audit basis?
 
[A.] Nothing in writing, but I've done it (once) in Detroit.
 
[Q.] Thanks for your response. When did you do it? How much time did it take? Hot [sic] much less than 60 days after filing was the case completed?
 
[A.] It was about 30 days after the prints were sent to the FBI. Basically, my associate simply begged the INS examiner to do it because the principle's [sic] son was aging out. The officer darkly warned of dire consequences if evidence of an excludable crime was received from the FBI but it wasn't.

 Id. at Exh. 9 (capitalization in original).

 Plaintiffs filed this lawsuit seeking, among other things, that defendant's conduct be declared unlawful and that defendant be ordered to adjudicate plaintiffs' applications on or before November 3, 1996, the day before Maldonado-Santos' twenty-first birthday. (Prayer for Relief Maldonado-Coronel v. McElroy 96 Civ. 7848 ("Prayer for Relief") PP 3-4 (Oct. 11, 1996).) Defendant sought a dismissal of plaintiffs' complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Alternatively, defendant sought an extension of time to prepare additional submissions. (Letter from Special Assistant United States Attorney F. James Loprest, Jr., Esq., to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York, Maldonado-Coronel v. McElroy, 96 Civ. 7848 ("Loprest Letter") at 1 (Oct. 21, 1996).) Because time was one thing which this dispute surely lacked, this Court held a hearing and rendered a decision in this case on October 25, 1996.

 DISCUSSION

 At the hearing, both parties directed their arguments to defendant's asserted bases for its motions to dismiss: (1) lack of subject matter jurisdiction; and (2) plaintiffs' failure to state a claim upon which relief could be granted.

 I. Subject Matter Jurisdiction

 Plaintiffs asserted that this Court had subject matter jurisdiction over this case, pursuant to Title 5, United States Code, Sections 701, et seq., Title 28, United States Code, Section 1361, Title 28, United States Code, Sections 1331, 1343, 2201, and 2202, Title 8, United States Code, Section 1329, as well as Rules 57 and 65. (Complaint P 4.) The INS disputed these asserted bases of jurisdiction, and sought to dismiss the Complaint pursuant to Rule 12(b)(1). (Hearing Tr. at 12, 15-17.) For purposes of ...


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