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October 25, 1999


The opinion of the court was delivered by: Spatt, District Judge.


This immigration matter involves the Defendant Immigration and Naturalization Service's ("INS") denial of the Plaintiffs visa petition to classify their niece, Sarah Elizabeth Ragob, as an immediate relative. Presently before the Court is the Defendants' motion to dismiss the complaint.


On February 23, 1998, the Plaintiffs filed a petition with the INS seeking to classify their adopted daughter, Sarah Elizabeth Ragob ("Sarah"), as an immediate relative, thus allowing her to emigrate from her home country of the Philippine Islands. On May 28, 1998, the INS determined that Sarah was not eligible for designation as an immediate relative pursuant to 8 U.S.C. § 1101 (b)(1)(f), because she was not considered "orphaned" by her natural parents as that term is defined in the immigration statute. On June 12, 1998, the Plaintiffs filed an appeal with the Board of Immigration Appeals ("BIA"), and on November 14, 1998, the BIA dismissed the appeal, holding that Sarah was not an orphan. The Plaintiffs then commenced this declaratory judgment action, seeking a declaration that Sarah is an orphan as defined by 8 U.S.C. § 1101 (b)(1)(f), and is therefore eligible for classification as an immediate relative.

The Defendants now move to dismiss the Plaintiffs' complaint on two grounds. First, the Defendants allege that a 1996 Congressional statute, 8 U.S.C. § 1252 (g) deprives this Court of subject matter jurisdiction to hear the case. Second, the government contends that decision of the INS on Sarah's status was not arbitrary or capricious.

The post-investigation findings of the INS Officer in Charge in the Philippines, which were part of the record before the BIA and attached as an exhibit to the complaint, shed additional light on Sarah's situation. The INS found that Sarah's natural father was a man named Arnel Sorilla, and that he and Zanaida, although not legally married, live together as husband and wife. Arnel is employed by a security and investigation agency, and supports three other children with Zanaida in a lifestyle considered "well-off" by local standards. Zanaida admitted to the investigating officer that the decision to list the father as "unknown" on the birth certificate was made by Plaintiff Ederlina, at the suggestion of her lawyer to ease the immigration process.


The Defendants argue that this Court lacks subject matter jurisdiction to decide this case by virtue of 8 U.S.C. § 1252. That section, entitled "Judicial Review of Orders of Removal," contains sections restricting judicial review of actions by the Attorney General. In this regard, the Defendants point to § 1252(g), which states

  Except as provided in this section and notwithstanding
  any other provision of law, no court shall have
  jurisdiction to hear any cause or claim by or on
  behalf of any alien arising from the decision or
  action by the Attorney General to commence
  proceedings, adjudicate cases, or execute removal
  orders against any alien under this chapter.

8 U.S.C. § 1252 (g).

Several courts have held that the revocation of subject matter jurisdiction in 8 U.S.C. § 1252 (g) applies only to removal proceedings, in which the INS attempts to deport or exclude an inadmissible alien. Burger v. McElroy, 1999 WL 203353 at n. 4 (S.D.N.Y. 1999) citing Shanti, Inc. v. Reno, 36 F. Supp.2d 1151 (D.Minn. 1999) and Dominance Industries v. INS, 1998 WL 874904 (N.D.Tex. 1998). This Court finds the logic in these cases to be sound. The title and content of § 1252 repeatedly refer to removal proceedings, and the section makes no mention of 8 U.S.C. § 1154, the procedure which the Plaintiffs invoked to obtain immediate relative status for Sarah. Therefore, the Court finds that § 1252(g) does not apply in cases such as this one, where the relief requested is simply re-classification of a petitioner's visa status, not removal or exclusion of an immigrant.

The Court now turns to the Defendants' second argument: that the decision by the INS that Sarah was not an "orphan" was not an abuse of discretion as a matter of law. An INS determination denying "immediate relative" status is within the broad discretion of the INS and "courts will not reverse its decision unless there has been an abuse of discretion." Vazquez v. U.S. Immigration and Naturalization/Serv., 1990 WL 156158 (E.D.N.Y. 1990) citing Delgado v. Immigration and Nataralization Serv., 473 F. Supp. 1343, 1348 (S.D.N.Y. 1979); see also Sidhu v. Jenifer, 104 F.3d 361 (table), 1996 WL 733133 (6th Cir. 1996). The court will not find an abuse of discretion unless the BIA's decision was "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis, such as an invidious discrimination against a particular race or group." Douglas v. INS, 28 F.3d 241, 243 (2d Cir. 1994). The Plaintiffs' complaint does not dispute the facts as found by the INS investigator in the Philippines regarding Sarah's family situation. Therefore, if the BIA's decision is an "abuse of discretion," it must be because the BIAs decision is a departure from established policies or a mis-application of the INS regulations.

The INS determined that Sarah was not eligible for a re-classification on the grounds that she was not an "orphan" as defined by the law. A child becomes an ...

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