the plaintiff was his son. (Mustafa Aff. Ex. B). On September 12, 1994, the INS denied the plaintiff's request because "it does not fall within one of the classes in [Operations Instructions] 212.5(c)(1) through (5)." (Mustafa Aff. Ex. D).
As a threshold issue, the government contends that this Court lacks subject matter jurisdiction to review an advance parole determination made by the INS. There is, however, ample authority to support a district court's review of a denial of advance parole requests. See Adeleke v. McNary, 1993 U.S. Dist. LEXIS 477, No. 92 Civ. 8440, 1993 WL 17439, at *2 (S.D.N.Y. Jan. 21, 1993); see also Khan v. Meissner, 1995 U.S. Dist. LEXIS 5470, No. 94 Civ. 7778, 1995 WL 244401 (S.D.N.Y. Apr. 27, 1995) (addressing merits of claim of unfair denial of advance parole); Cohen v. Smith, 534 F. Supp. 618 (S.D. Tex. 1982) (same); Massoud v. Attorney General, 459 F. Supp. 672 (W.D. Mo. 1978) (same); 6 C. Gordon and S. Mailman, Immigration Law and Procedure, at 151-35 (calling the assertion by the government that a district court lacks jurisdiction to review immigration determinations "unsupportable" and finding that "it is surprising that the government occasionally resurrects it, despite numerous repulses in the courts").
The Court has federal question jurisdiction under 28 U.S.C. § 1331 because the plaintiff's claim arises under federal law.
The plaintiff argues that the denial of advance parole will prevent him from returning to the United States after a "brief and casual" trip, which is authorized by the IRCA. See 8 U.S.C. § 1255a(b)(3)(A). Because this claim requires an interpretation of the IRCA and the regulations promulgated thereunder, it arises under federal law, and 28 U.S.C. § 1331 provides subject matter jurisdiction and the Administrative Procedure Act, 5 U.S.C. § 702, supplies the corresponding waiver of sovereign immunity. See Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 56, 125 L. Ed. 2d 38, 113 S. Ct. 2485 (1993); Adeleke, 1993 U.S. Dist. LEXIS 477, 1993 WL 17439, at *2.
The plaintiff moves for summary judgment on the grounds that the denial of his request for advance parole by the INS was a gross abuse of discretion. He argues that he falls within the class of aliens who may be granted advance parole for "emergent or humanitarian considerations." See Operations Instructions § 212.5(c)(5). The defendants cross-move for summary judgment on the grounds that the INS acted well within its discretion in denying the plaintiff's application for advance parole.
The standard of review in challenging denial of advance parole is a highly deferential one: "The INS decision 'must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or was exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole.'" Khan, 1995 U.S. Dist. LEXIS 5470, 1995 WL 244401, at *2 (quoting Bertrand v. Sava, 684 F.2d 204, 212-13 (2d Cir. 1982)); see also Adeleke, 1993 U.S. Dist. LEXIS 477, 1993 WL 17439, at *2-*3 (applying the abuse of discretion standard set forth in the Administrative Procedure Act); Cohen, 534 F. Supp. at 622-24 (same). In addition, in assessing whether the INS's decision was "arbitrary and capricious," this court is not limited to the justifications offered at the time of the denial. See Massoud, 459 F. Supp. at 675 (explaining that the rule against "post hoc rationalizations" does not extend to "supplemental articulations" of the reasons behind a decision to deny the plaintiff's request for advance parole).
A review of the record in this case demonstrates that the INS did not abuse its discretion in denying the plaintiff's request for advance parole. Although the INS may grant advance parole to an alien for "emergent or humanitarian considerations" if he demonstrates that "he must make an emergency trip to another country for legitimate personal reasons -- for example, that he wishes to attend the funeral of an immediate family member in another country," (Ryan Decl. P 7), the INS has considerable discretion in making that determination. In this case the plaintiff applied for advance parole in order to attend the funeral of his father in Bangladesh more than a month and a half after his father's death. According to John Ryan, a Supervisory District Adjudications Officer for the INS, "parole is not typically granted for 'emergent or humanitarian considerations' to an alien requesting advance parole based on the death of a family member in another country if the death of that family member occurred more than one month prior to the application for advance parole." (Ryan Decl. P 8.) Moreover, the plaintiff did not submit with his application a certified copy of a birth certificate demonstrating the parental relationship, which is typically a requirement for an alien seeking to travel abroad to attend funeral services for a parent. (Ryan Dec. P 9.)
It was not an abuse of discretion for the INS to require an applicant to comply with rules regarding deadlines and supporting documentation and to deny the plaintiff's application for advance parole. This was not a case of such emergency where the application of regular procedures could be considered to be an abuse of discretion. Accordingly, the plaintiff's motion for a mandatory injunction is denied, and the defendants' motion for summary judgment is granted.
For the reasons stated above, the defendants' cross-motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied. The Clerk is directed to enter judgment dismissing this action and closing the case.
Dated: New York, New York
November 18, 1996
John G. Koeltl
United States District Judge