Petition — Chour v. Ferro

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Su preme Laut, U.S

FILED

JAN 18 1979

IN THE bates RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

78-1133

DER-RONG CHOUR,

Petitioner,

—vV.—

BENEDICT J. FERRO, et al.,

Respondents.

DER-RONG CHOUR,

Petitioner,

— a

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Law Offices of

Davip C. BuxBaum, P.C.

Attorneys for Petitioner

\" 11 Broadway, Suite 1612

es New York, New York 10004

| (212) 425-4347

Davip C. BUXBAUM, Esq.

Of Counsel.

INDEX

PRELIMINARY STATEMENT

Proceedings Below...........2--

QUESTIONS PRESENTED...........-.

STATEMENT OF FACTS......---eeeees

ARGUMENT :

I. THE COURT OF APPEALS

ERRED IN AFFIRMING

THE DISTRICT COURT'S

DISMISSAL OF PETI-

TIONER'S COMPLAINT

ON ITS OWN MOTION

WHERE VALID CONSTI-

TUTIONAL ISSUES WERE

RAISED ON THE FACT

OF THE COMPLAINT.........

A. A Court May Not

Dismiss a Com-

plaint Raising

Constitutional

Issues Sua Sponte....

B. A Court May Not

Dismiss a Com-

plaint At This

Stage of the

LItAgetiom. .ccesccses

C. The Complaint

Dismissed Below,

Alleging Viola-

tions of Fourth

Page

ARGUMENT continued:

Il.

IIl.

and Fifth Amend-

ment Rights. and

Violations of

INS Regulations

and Seeking

Damages for Same,

and Other Relief,

Was a Valid Com-

plaint on Its

Se re ee ere

THE COURT OF APPEALS

ERRED IN PRECLUDING

REVIEW OF PETITIONER'S

CLAIM FOR A STAY OF

DEPORTATION UNDER

STOKES V. UNITED STATES..

A. The Stokes Decision

Permits Petitioner ..

A Stay of Final

Deportation Pending

Final Adjudication

of His I-130 Spouse

VASGG. FOCitions<c2see.

B. Chour is Eligible

For Extended Volun-

tary Departure.......

THE SECOND CIRCUIT COURT

OF APPEALS ERRED IN

ASSESSING COSTS AGAINST

PETITIONER AND HIS ATTOR-

Page

«BS

ARGUMENT continued:

The Second Cir-

cuit Standard

for Imposition

of Monetary

Sanctions Is

Improper and in

Conflict with

the Standards

Enunciated by

Other Circuit

Courts of

Appeal... ..eeeeeeeees

Imposition of a

Fine Against Peti-

tioner's Attorney

Created a Chilling

Effect on Counsel's

Willingness to

Proceed with His

Representation of

Petitioner, Thereby

Effectively Denying

Petitioner His

Statutory and Con-

stitutional Right

#6 COUNSEL. ccccecece

1. Statutory Right

to Counsel.......

2. Constitutional

Right to Counsel.

iii

Page

ARGUMENT continued:

Page

Imposition of a

Fine Against

Counsel Placed

Him in the Posi-

tion of Possibly

Breaching His

Ethical Duty to

Represent Peti-

tioner According

to the Code of

Professional

Responsibility....... 56

The Imposition of

a Fine Against

Petitioner's

Attorney Without

Reasonable Notice

and an Opportunity

to Show Cause to

the Contrary Con-

stituted a Viola-

tion of the

F.R.A.P., Rule

46(c), and Notions

of Procedural Due

Process Pursuant

to the Fifth and

Fourteenth Amend-

The Imposition of a

Fine Against Attor-

ney for Petitioner

Constituted A Viola-

tion of Principles

es ee eee -

ARGUMENT continued:

CONCLUSION

of Equal Protec-

tion Guaranteed

by the Fifth and

Fourteenth Amend-

ments to the

United States

COMBE ECUSLOR: oc cccccs

Assessment of

Damages and Double

Costs Against

Petitioner Was an

Abuse of Discre-

tion and Highly

ash, ' i 40 } Oe ee

Page

TABLE OF CITATIONS

Cases Cited:

Acevedo v. INS, 538 F.2d

SES Law Cabs CLOT) Gecdswee

Alvarez v. District Director

of INS, 539 F.2d 1220

bl ody Ayes ee

Ballenilla-Gonzalez v. INS,

S46 F.2d 515 (2d Cir.

Cee tak oa eee da ee Oe wer ak} 8

Bell v. Hood, 327 U.S. 678

CEOS Pe ve palae ¥en 600m bo bet ee

Biao Pan v. INS, Civ. No.

77°4026 (26 Cit. 1977)... 5+

Bivens v. Six Unknown

Federal Narcotics Agents,

403 U.S. 388 (1971)...

Bridges v. Wixon, 326 U.S.

E39 EEGES) 6 cecSeqeedccces sy

Butz v. Economou, 0.8%

, 98 S.Ct. 2894 (1978)..

Castaneda-Delgado v. INS,

$25 F.2d 1295 (7th Cir.

1975) ccc cr acccwecsccecces

Page

46,47,48,

51,52

26,27

67,69

25,26

55,56

ee ee ee

Cases Cited Continued:

Cheng Fan Kwok v. INS, 392

stn: 6200 COPOG) <i 6.6860 50 ae

Chour v. Ferro, 573 F.2d

1289 (2d Cir. 1977) cert.

den. 434 U.S. 1963

COPED 6h cao bee eek ae

Chour v. INS, 578 F.2d 464

(2d Cir. 1978) applica-

tion denied U.S. ‘

46 U.S.L.W. 3740 (May 30,

LEPOTN AAO e ed ectedceees

Colato v. INS, 531 F.2d 678

Be GET. FEO deer eek ke ad

Conley v. Gibson, 355 U.S.

RE EOC J ch been a Ceabivenss

Dioguardi v. Durning, 139

Pee Vee, 775 C20 Cir,

tLe Pee ore parte area es

Fan Wan Keung v. INS, 434

F,0G: a0) C2 Civ. 1976)

Fots Vv. (ING, S75 U.S... 227;

ft A re erence eee eee

Glasser v. U.S., 315 U.S.

oe A ROMS 4 v'e ad Mace wae eA eek

Haggy v. Solem, 547 F.2d

1363 (8th Cir. 1977)

vii

Page

51,352,354

34,00

40,42,43,

Cases Cited Continued:

Hanley v. Condrey, 467 F.2d

OST C1078) c cssccveseccene

Jamison v. Butcher §

Sherrerd, 68 F.R.D. 479

CE. 0. PO. 1975) occ civcscvese

Katris v. INS, 562 F.2d

866 (2d Cir. 1977}. cccse.

Kiefel v. Las Vegas

Hacienda, 404 F.2d 1163

(7th Cir. 1968} cvcscccase

Lewis v. State of New York,

S47 F.2d 4 (2d Cir.

ROTO vans ahi casks wan ecere

Matter of Vera Rodriques,

10 I&NS Dec. 113

CRIA -EOGZ icc beck tc ce s-as

Matter of Yeung, 13 I§NS

Dec. 528 (BIA 1970)......

Miles v. Dickson, 387 F.2d

726 (5th Cir. 1967) 66 «00s

Noel v. Chapman, 508 F.2d

1023 (2d Cir. 1975)......

Overmeyer v. Fidelity §

Deposit Co. of Maryland,

$54 F.2d 539 (2d Cir.

a Pree ee wie a ee

Page

60,61

46,47

16,17,18

50,60,61

a Pe ee “am

Cases Cited Continued:

Powell v. Alabama, 287 U.S.

WO CRW AS 6 66 6:6 6 008.0 wo oe oe

Scheuer v. Rhodes, 416 U.S.

EOS EEO T OS vos eek i605 600? 2

Sexton v. Barry, 233 F.2d

220,224 (6th Cir. 1956)...

Stokes v. INS, 74 Civ. 1022

(S.D.N.Y. 1976)

U.S. v. Ross, 535 F.2d 346

EOE eRe SOTO I ss shat Cos

Statutes Cited:

Dave Os OOCTEON ZO2. sc kc ce

8 C.F.R. section 243

BS C.RLR. section 265. .c6iics

22 C.F.R. section 42.10

8 U.S.C. section 1101

TU) La 2 Cian La ehangey Panera

8 U.S.C. section 1105(a)....

Page

£2525509

35,36,39,

40,41,43

48,49

Statutes Cited Continued:

Page

8 U.S.C. sections 1153(a)(1),

‘€2 Pee 6 me |} ee be 29

8 U.S.C. section 120l(a).... 39

S U.S.C. SOCEION D325s.5 54% 56

26 U.S.C. SOCTEON 191220050 45

oe U.S. Cx SOCtiow TPs ives 45,48,60,

I&NA section 101l(a)(16)..... 39

SORA SOCTEOR ZELCH) 6 0c é-0c ee 39

U.S. Constitution Cited:

Fourth Amendment...........6. 3,20,24

PASE AMONGMORE.< o/cc'k0 5 bs sie 0's 520,24,

$9,62,63

Sixth Amendment.......cseees 55

Fourteenth Amendment........ 59 ,62,63

Other Authorities:

ABA Code of Professional

Responsibility, Canon 7... 52,57

ABA Code of Professional

Responsibility, DR7-101... 58

Other Authorities Continued:

Page

Federal Rules of Appellate

Procecure, Rule Si. cove. 46,48,65,

66,67

Federal Rules of Appellate

Procedure, Rule 46(c)..... 46,59,61,

Federal Rules of Civil

Procedure, Rule 12(b)..... 17

Federal Rules of Civil

POCOGUTS, RMLS 56.206 c0.0 ye i

INS Operations Instruction

re. Se rere see ee 41,42

APPENDIX

A chs we Re ene e A ak ee A-1 - A-2

NS Seats s 0 bk bee ares On A-3 - A-22

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

DER-RONG CHOUR,

Petitioner,

Vv.

BENEDICT J. FERRO, et al.,

Respondents.

DER-RONG CHOUR,

Petitioner,

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PRELIMINARY STATEMENT

Proceedings Below

That part of the petition

dealing with Docket No. 78-6054 was

commenced by service of a summons and

-l-

and complaint, filed in the United

States District Court, Southern

District of New York, on February

Ai 1978. The petitioner, Der-rong

Chour (hereinafter, "Chour''), brought

suit against Benedict J. Ferro,

individually and as District Director,

Immigration and Naturalization

Service (hereinafter, "INS"), Buffalo,

New York; Anthony M. DeGaeto,

individually and Trial Attorney, INS;

certain unknown named deportation

officers, individually and as

employees of the INS; Maurice F.,

Kiley, District Director, INS;

charging that they were violating

l. See, C.A. App. p. 3. References

noted C.A. App. are to documents

filed in the Joint Appendix to

the Second Circuit United States

Court of Appeals.

petitioner Chour's Fourth and Fifth

Amendment rights and that they were

violating their own regulations. In

addition to money damages, Chour also

sought mandamus, contempt and injunc-

tive relief.

Following the filing and

serving of the summons and complaint,

on February 1, 1978, petitioner made

an application for an order to show

cause to stay deportation. (C.A. App.

13). This came before the Part I

judge, Judge Pierce, who granted a

temporary stay. (C.A. App. 71). On

February 3 and 9, 1978, the order to

show cause was heard before Judge

Griesa. (C.A. App. 93, 104). The

parties filed papers in support and in

opposition to the preliminary injunc-

tion sought by Chour (C.A. App. 13, 35,

-3-

58), and on February 9, 1978, without

the benefit of an answer to the com-

plaint, discovery, or a hearing on

the issues of the case, and without

prior notice to Chour, the District

Court, sua sponte, dismissed the com-

plaint. The final order and judgment

were entered on February 23, 1978.

On November 22, 1978, the

Second Circuit Court of Appeals

affirmed the District Court's dis-

missal of the complaint, stating that

the claims asserted by petitioner

were either barred by collateral

estoppel or were patently frivolous

and lacking in any merit.

Chour v. Ferro, 573 F.2d 1289 (2d

Cir. 1977), cert. denied, 434 U.S.

1063 (1978), was addressed to is-

sues relating to Chour's allega-

tions that he was denied constitu-

(fn. cont'd.)

-4-

Docket No. 78-4017 arose from a

petition for review of a decision of

the Board of Immigration Appeals

hereinafter, ("Board" or "BIA"), dated

February 1, 1978, which denied

petitioner's motion to reopen his

deportation proceeding to permit him

to become a permanent resident alien

by immigrating from Canada. The Court

of Appeals, in Chour v. INS (App. pp.

3-17) granted the Government's motion

for summary affirmance of the decision

of the BIA and assessed damages in the

sum of $1,000 and double costs against

(fn. cont'd.)

2. tional due process in his original

deportation hearing in 1974; Chour

v. INS, 578 F.2d 464 (2d Cir.I978),

application denied U.S. ,

46 U.S.L.W. 3740 (May 30, 1978),

this action is the subject of part

of the petition filed herein.

(Docket No. 78-4017).

-§-

his attorney, David C. Buxbaum.

Chour's motion to consolidate his

petition for review of the Board's

order with his appeal in Docket No.

78-6034, assessment of damages and

double costs against the INS, referral

to a new panel, and a hearing, was

denied in its entirety. (App. 21-22).

QUESTIONS PRESENTED

1. Whether a court may properly,

on its own motion, dismiss a complaint

on its merits, when it has before it

only the summons and complaint, an

application for an order to show cause

for injunctive relief, before there

has been any discovery, without a

hearing on the merits or notice to the

plaintiff was being contemplated.

2. Whether the Second Circuit

Court of Appeals erred where it

-6-

refused to consider a stay of deporta-

tion of petitioner under the consent

decree in Stokes v. U.S., 74 Civ. 1022

(S.D.N.Y. 1976).

3. Whether the Second Circuit

Court of Appeals abused its discretion

by assessing the sum of $1,000 and

double costs against attorney for

petitioner pursuant to its dismissal

of petitioner's motion for review of

an INS order refusing to reopen

deportation proceedings against him.

STATEMENT OF FACTS

Petitioner is an alien crewman

who is a native of China. He was

originally arrested on or about July

18, 1974. An order to show cause and

a notice of hearing were issued on

July 18, 1974 and petitioner posted a

a ee Se EES Ltt ee Re ma a =

$2,500 bond as required by the INS.

(C.A. App. 5S).

The deportation hearing took

place on September 4, 1974. At said

hearing, Chour was not advised of his

right to counsel, to cross-examine

witnesses, to examine and object to

evidence, to present evidence on his

own behalf and to appeal the Immigra-

tion Judge's decision to the Board of

Immigration Appeals (C.A. App. 5), all

of which is in violation of the INS'

own rules and regulations. (See, 8

CFR section 242.) Petitioner was not

represented by counsel at the hearing

and was found to be deportable with

voluntary departure being granted

until October 4, 1974.

Almost three years later,

Chour's bond was wrongfully cancelled

«fi.

by respondents, as petitioner was

never properly informed of his pending

deportation as is required by the

applicable regulations. (C.A. App. 6).

(See, 8 CFR section 243.) On June 6,

1977, petitioner was arrested and held

for immediate deportation and was

wrongfully detained without ever being

given a full fledged formal bond

hearing by respondents. (C.A. App. 6).

Petitioner obtained counsel and

attempted to reopen and appeal his

case in an effort to reverse the

earlier finding of deportability.

(C.A. App. 6). Chour was originally

subject to the jurisdiction of

respondents' Buffalo, New York

district office; however, he later

moved to New York City, where he filed

two applications for adjustment of

«9

status on or about September 30, 1977.

(C.A. App. 6). Following his

marriage to a resident alien, he filed

an I-130, petition on September 30,

1977. Despite this, respondent's

Buffalo officials denied petitioner

access to his file by refusing

to transmit them to respondents' New

York City office. The refusal by

respondents to carry out this

purely ministerial duty improperly

withheld and deprived the petitioner

of his right to the file. (C.A. App.

ee ee ie

Following his applications for

adjustment of status, on November 3,

1977, petitioner filed an application

for a stay of deportation with

respondents' New York City district

-10-

office based on the pending adjustment

of status petitions. Due to respon-

dents' refusal to transfer Chour's

files to the New York City district

office, said office was unable to stay

the deportation or adjudicate the

petitions. (C.A. App. 7).

Consequently, the United States

District Court for the Southern

District of New York and the Second

Circuit Court of Appeals denied a stay

of deportation. However, while the

application for a stay was before

these courts, respondents, although

aware of a consent judgment with

direct application to the instant

case, Stokes v. INS, withheld same

from said Courts. (C.A. App. 8).

3. Stokes v. INS, 74 Civ. 1022

(fn. cont'd.)

-1l-

tl De oS -

The I-130 petition was approved

on January 25, 1978. (C.A. App. 8).

Respondents moved to deport Chour on

February 1, 1978, which is the same

date that the summons and complaint

and the application for an order to

show cause to stay deportation was

made in Docket No. 78-6034 in the

Southern District of New York. The

Part I judge, Judge Pierce, granted

the temporary stay. (C.A. 71).

On February 3 and 9, 1978, the

order to show cause was before Judge

Griesa in the Southern District of

New York. (C.A. App. 93, 104). On

February 9, 1978, without the benefit

(fn. cont'd.)

3. (S.D.N.Y. 1976--INS stipulated

that it would not deport aliens

with pending I-130 applications.

of an answer to the complaint,

discovery, or a hearing on the issues

of the case, and without proper

notice to Chour, the District Court

sua sponte, dismissed the complaint.

The final order and judgment were

entered on February 23, 1978. (C.A.

App. 119).

Petitioner then filed a petition

for review to the Second Circuit Court

of Appeals of the decision of the BIA

denying petitioner's application to

reopen his deportation proceeding.

(App.pp.10-11). Additionally, petitioner

filed an appeal of the District Court

opinion in Docket No. 78-6034 and

moved to consolidate said appeal with

his petition for review of the Board's

order (Docket No. 78-4017)... (App. pp.

10-11).

-13-

ee ee ee ee ee ee

On April 28, 1978, the Second

Circuit denied petitioner's motion

for consolidation of the petition for

review with his appeal from Judge

Griesa's opinion (Docket No. 78-6034).

The court then granted the Government's

motion for summary affirmance of the

decision of the BIA and assessed

damages in the sum of $1,000 and

double costs against petitioner and

his attorney, David C. Buxbaum. (App.

pp. 3-17).

The Second Circuit, on November

22, 1978, entered its order affirming

the District Court decision in Docket

No. 78-6034. (App.pp. 1-2). The Court

found that the Government had made an

oral request for dismissal, and there-

fore the District Court had the power

to dismiss the complaint without

=26-

requiring that a formal written motion

be filed. The court then summarily

found that petitioner's claims were

barred by collateral estoppel or were

patently frivolous and lacking in any

merit.

ARGUMENT

I. THE COURT OF APPEALS ERRED IN

AFFIRMING THE DISTRICT COURT'S

DISMISSAL OF PETITIONER'S COM-

PLAINT ON ITS OWN MOTION WHERE

VALID CONSTITUTIONAL ISSUES

WERE RAISED ON THE FACT OF THE

COMPLAINT.

A. A Court May Not Dismiss a

Complaint Raising Constitu-

tional Issues Sua Sponte.

In its decision, the District

Court's opening remarks indicated

clearly that it was dismissing peti-

tioner's complaint sua sponte.

"THE COURT: On Chour against

Ferro, there has been a great

deal of briefing and [| am pre-

pared to dictate a ruling, so

if you would, sit down.

=4§-

"The action is totally with-

out merit. The application

for injunctive relief is

denied, and I am, on my own

motion, dismissing all

further claims, and I am

specifically referring to a

claim for damages." (Emphasis

supplied.) (C.A. App. 105).

The dismissal of an action by a

court on its own motion, for failure

to state a claim, is, to say the

least, an extreme measure. More than

a quarter century ago, the Second

Circuit, through the late Chief

Justice Clark cautioned against "judi-

cial haste which in the long run makes

waste."' Dioguardi v. Durning, 139

F.2d 774, 775 (2d Cir. 1944).

In Lewis v. State of N.Y., 547

F.2d 4 (2d Cir. 1976), the court, in

dealing with a sua sponte dismissal of

a pro se complaint, applied the follow-

ing rationale:

-16-

"Great circumspection is

required before terminating

such actions, particularly

in their embryonic stages.

It is prudent for judges to

avoid an inquisitorial role,

and not search out issues

more appropriately left to a

motion by the opposing party.

"If defendants had moved

to dismiss for failure to

state a claim, pursuant to

Rule 12(b)(6) of the Federal

Rules of Civil Procedure,

Lewis would have received

notice of the challenge to

the sufficiency of the com-

plaint. He would have had

an opportunity to respond by

seeking leave to amend, or

setting forth arguments sup-

porting the validity of his

claim. Because Judge Port

dismissed sua sponte, how-

ever, Lewis did not receive

notice of the proposed

disposition and was unable to

respond." (Ibid., at 5-6;

fn. omitted.

It is respectfully submitted that

this rationale is equally applicable

to the instant petition. Moreover, at

the end of the above language, the

court, in footnote 4, noted that

"(fjailure to afford plaintiffs

an opportunity to address the court's

sua sponte motion to dismiss is, by

itself, grounds for reversal." 574 F.

2d 4 at 6 (emphasis supplied).

A review of the transcript of

February 9, 1978 reveals that the

District Court refused to allow peti-

tioner's counsel to have oral argument

or file a memorandum to rebut the

court's ruling. (C.A. App. 111, 117-

118). The court quickly read a reply

brief addressed to the issues of sanc-

tions and the stay and then determined

that oral argument was not necessary.

(C.A. App. 112).

In Jamison v. Butcher § Sherrerd,

68 F.R.D. 479 (E.D.Pa. 1975), it was

held that a dismissal for failure to

-18-

state a claim upon which relief can be

granted calls for a judgment on the

merits after the court has assumed

jurisdiction and that such relief is a

matter not properly raised sua sponte.

The Supreme Court in Bell v. Hood,

327 U.S. 678 (1945), held that where

a complaint in a federal court is so

drawn as to seek recovery directly

under the Court or laws of the United

States, the Court must entertain the

Suit, except where: (1) the alleged

claim appears to be immaterial and

made solely for the purpose of obtain-

ing jurisdiction, or (2) it is wholly

insubstantial and frivolous. (Id. at

682).

However, in Bell, supra, at p. 684,

the Court specifically stated that the

issue whether federal courts can grant

-19-

money recovery for damages alleged to

have been suffered as a result of

federal agents violating the Fourth or

Fifth Amendments has sufficient merit

to warrant exercise of federal juris-

diction for purposes of adjudicating

Since this was some of the specif-

ic relief being sought by petitioner

below, it was improvident and reversi-

ble error for the Second Circuit to

summarily affirm the District Court's

dismissal of the complaint sua sponte.

B. A Court May Not Dismiss a Com-

plaint At This Stage of the

Litigation.

Much of the discussion above

is directly applicable herein and will

be incorporated by reference. In

Haggy v. Solem, 547 F.2d 1363 (8th Cir.

1977), after holding the dismissal of

-20-

a complaint as improper and premature,

the court indicated (at p. 1364):

"If appellant's claims are

in fact illusory, the Federal

Rules of Civil Procedure pro-

vide the means to make such

determination upon a suffi-

cient development of the

record even before the trial.

F.R.G.F.. Bea

Clearly, the District Court had a

most sparse record before it. There

had been a summons and complaint; an

application for an order to show cause

with supporting affidavits; and two

affidavits in opposition. There had

been no answer to the complaint; no

motion to dismiss; no prior notice to

the petitioner of the court's determi-

nation to dismiss; no oral argument on

the validity of the claims alleged; no

evidence or discovery related to the

validity of the claims. In effect,

-21-

there was no record before the court.

Counsel had appeared for a hearing

on the petitioner's application for a

stay of deportation and without having

his day in court, petitioner found him-

self out of court.

It is respectfully submitted that

the Circuit Court's affirmance of the

District Court's dismissal pursuant to

its own motion without allowing peti-

tioner to submit any proof to establish

his claim, prior to the dismissal, was

error.

The United States Supreme Court

held in Scheuer v. Rhodes, 416 U.S.

232 (1974), that:

"When a federal court re-

views the sufficiency of a

complaint, before the recep-

tion of any evidence either

by affidavit or admissions,

its task is necessarily a

limited one. The issue 1s

-22-

not whether a plaintiff will

ultimately prevail but whether

the claimant is entitled to

offer evidence to support the

Claims. Indeed 1t may appear

on the face of the pleadings

that a recovery is very remote

and unlikely but that is not

the test. Moreover, it is

well established that, in

passing on a motion to dismiss,

whether on the ground of lack

of jurisdiction over the sub-

ject matter or for failure to

state a cause of action, the

allegations of the complaint

should be construed favorably

to the pleader.

'In appraising the suffi-

ciency of the complaint we

follow, of course, the ac-

cepted rule that a complaint

should not be dismissed for

failure to state a claim

unless it appears beyond a

doubt that the plaintiff

can prove no set of facts

in support of his claim

which would entitle him to

relief.' Conley v. Gibson,

355 U.S. 41, 45-46 (1957)

(fn. omitted.)"' (Emphasis

supplied.)

Clearly, on the basis of this lan-

guage (and the rest of the decision)

and on the basis of all of the fore-

going, the courts below acted prema-

turely and were in error in so acting.

C. The Complaint Dismissed Below,

Alleging Violations of Fourth

and Fifth Amendment Rights and

Violations of INS Regulations

and Seeking Damages for Same,

and Other Relief, Was a Valid

Complaint on Its Face.

The Statement of Facts, supra,

is based primarily upon the complaint

which was dismissed below. It is

submitted that it adequately pleaded

a federal cause of action on its face.

The complaint alleges facts which, if

proven, would make out a prima facie

case of violations of petitioner's

Fourth and Fifth Amendment rights by

the respondents. These violations are

alleged to have been unlawful deten-

tion and denial of due process through

respondents' violation of their own

rules and regulations.

= tis

As a result of the foregoing, peti-

tioner was seeking injunctive relief

and damages. On its face, therefore,

it would appear that a valid cause of

action had been stated.

The District Court did not ques-

tion jurisdiction; consequently, this

was not a cause of dismissal. Nor did

it question personal immunity of

federal agents, which, on the basis of

Butz v. Economou, U.S. » 98

S.Ct. 2894 (1978), would not have been

a valid argument. In Butz, the

Supreme Court held that federal agents

may be liable for damages arising out

of their violations of an individual's

constitutional rights. In so doing,

the Court followed and extended its

rulings in Scheuer v. Rhodes, supra,

and Bivens v. Six Unknown Federal

» 26—

Narcotics Agents, 403 U.S. 388 (1971).

In Bivens, as in Butz, the Supreme

Court did not regard issues involving

violation of constitutional rights by

federal agents as being "frivolous".

It is respectfully submitted that

the Second Circuit nor the District

Court had a sufficient record before

it on which to determine the lack of

legal sufficiency of the petitioner's

complaint. The petitioner alleged

serious violations of his constitu-

tional rights and was entitled to his

day in court.

In dismissing petitioner's com-

plaint, the transcript of February 9,

1978 reveals that the District Court

relied upon Ballenilla-Gonzalez v. INS,

546 F.2d 515 (2d Cir. 1976) for

determining that the complaint in this

-26-

case was "frivolous". (C.A. App. 105).

Even if it is assumed, arguendo, that

the petitioner's complaint was identi-

cal to the Ballenilla-Gonzalez com-

plaint, it is clear that in the latter

case the due process issue involved

an express waiver of the right to

counsel based upon a misapprehension

of the law (other issues were raised

but were not determinative).

In the instant case, allegations

of unlawful detention, violations of

due process, attacking the very

essence of the deportation hearing,

and other violations were alleged. On

the face of the complaint, it is sub-

mitted that a valid cause of action

was set forth. While the District

Court was properly concerned with the

inherent delay built into the area

a gy

of immigration litigation (where

frivolous suits have been brought

solely to seek to delay deportation),

this does not mean it can ride rough

shod over every suit alleging viola-

tions of an alien's constitutional

rights. There is a proper way to

determine legal sufficiency of com-

plaints. Precipitous action by

district courts in this area is more

dangerous, and ultimately more time

consuming, than the malady they are

attempting to cure.

II. THE COURT OF APPEALS ERRED IN

PRECLUDING REVIEW OF PETITIONER'S

CLAIM FOR A STAY OF DEPORTATION

UNDER STOKES V. UNITED STATES.

In Stokes v. United States, 74

Civ. 1022 (S.D.N.Y. 1976), the plain-

tiffs challenged the manner in which

the INS processed spouse preference

oe: e

petitions (1-130 petitions) and the

treatment of the alien beneficiaries

of those petitions during their

pendency. The preference petition

procedure is the means by which the

INS verifies the family relationship

of a lawful United States resident and

an alien of the same family. An other-

wise eligible alien with such a family

relationship is entitled to special

preference. See, 8 U.S.C. sections

1153(a)(1), (2), (3), (4) and (5).

"41. Pending final adjudica-

tion of an I-130 spouse visa

petition, the District Direc-

tor shall nor deport or

institute deportation proceed-

ings against the alien bene-

ficiary or in any manner

direct the alien beneficiary

to leave the United States if

approval of the visa petition

would make the beneficiary

eligible to file an applica-

tion for adjustment of status

under section 245 of the Act,

or for extended voluntary

departure, provided however,

that the District Director

may seek to deport where he

is clearly frivolous or where

there are substantial adverse

factors which would lead to

denial of adjustment of status

or extended voluntary depar-

ture... ."' (Emphasis supplied. )

(App. p. 17). (C.A. App. 20).

In granting the Government's motion

The Stokes consent decree estab-

se eerenaatenaeT for affirmance, the Second Circuit

lishes safeguards to insure, inter

stated that ''...Chour has never pre-

alia, that an alien otherwise eligible

aeeecharel viously presented his Stokes theory to

for permanent residence is not deported | hl P eae

the Board, which precludes review of

while his I-130 petition is being ;

that claim here." (App.pp.13-15). To be

processed. Paragraph 41 of the decree

sure, the court did discuss briefly

provides in pertinent part as follows:

-29- = 30-

its opinion as to petitioner's claim

under Stokes (App.pp.12-15), but that

language should only be considered

dicta in light of the court's state-

ment that consideration of the Stokes

claim was precluded from review.

That the Court of Appeals erred in

ruling that petitioner's claims under

Stokes were precluded from review is

clear. In Cheng Fan Kwok v. INS, 392

U.S. 206 (1968), the Supreme Court

held that under 8 U.S.C. section 1105

(a) an alien seaman's appeal from a

denial of a suspension of deportation

pending submission of a seventh pref-

erence application embraces "only

those determinations made during a

proceeding conducted under 242(b),

including those determinations made

incident to a motion to reopen... ."

~ $2.

392 U.S. 206. The case thus estab-

lished that the Court of Appeals had

exclusive jurisdiction over Chour's

appeal from the Board's decision not

to reopen his deportation proceedings.

In Colato v. INS, 531 F.2d 678 (2d

Cir. 1976), petitioner's appeal to the

Second Circuit under 8 U.S.C. 1105(a),

on the single issue of the refusal to

reopen a visa petition application

previously denied by the BIA was

dismissed with the court's instruc-

tions that the appeal lie in the

District Court. |

"It is clear to us that

the denial of a visa petition,

under the circumstances pre-

sented here, was neither a

final order of deportation

nor made pursuant to section

242(b) administrative pro-

ceedings."" 531 F.2d 678

By this standard, Chour's claims

= $2-

were within the scope of review as his

deportation was being attempted "pur-

suant to' section 242(b). Further,

the failure to abide a consent decree

which mandates preclusion of deporta-

tion is "intimately connected with a

deportation proceeding" and justified

review of the claims under 8 U.S.C.

section 1105(a). See, Colato v. INS,

S531 F.2d 678, 680. It follows, there-

fore, that if the effect of the con-

sent decree's protective feature

precluding deportation derives from

Chour's "eligibility" for extended

voluntary departure in connection

with the visa issuing process (this is

the mechanism of the Stokes decree),

the process itself must be examined or

the rule of the Second Circuit as set

forth in Colato will not be given

« $3

effect.

As the Stokes decree did not exist

at the time of the original deportation

hearing for Chour, the scope of review

should have been accommodated to

embrace the Stokes claims. See, Foti

v. INS, 575 U.S. 217, 2350, n. 16,

approved, Cheng Fan Kwok v. INS, supra

at 216, 8°27

The dicta of the court of appeals

relative to its rejection of petition-

er's Stokes claims demonstrated the

court's totally having blinded itself

to the issues raised in petitioner's

memoranda. The court then "covered

its tracks" by stating that review of

Stokes claims were precluded. (App.pp.13-

15). The conclusion that petitioner's

claims were jurisdictionally defective

constitutes plain error which must be

reversed.

A. The Stokes Decision Permits

Petitioner A Stay of Final

Deportation Pending Final

Adjudication of His I-130

Spouse Visa Petition.

The Second Circuit rejected

Chour's argument that Chour is

entitled to a stay of deportation

pending final adjudication of his I-130

spouse visa petition, citing Noel v.

Chapman, 508 F.2d 1023 (2d Cir. 1975),

for support. (App. pp. 13-15).

Decided on January 3, 1975, the

holding of the Second Circuit in Noel

v. Chapman cannot be controlling where

superseded by the Stokes consent decree.

As will appear, the Stokes decree

effectively eclipses the effect of

the Noel decision that there is

no constitutional bar to deporting

aliens such as petitioner pending

-35-

obtaining a visa,

The Court of Appeals stated next

that the INS' approval of Chour's

1-130 petition did not render peti-

tioner eligible for adjustment of

status within the United States; he

must first seek admission into the

United States by applying for a visa

at a United States Consulate abroad,

which would require a waiver from the

Attorney General in view of the order

of deportation outstanding against

Chour. (App. pp. 15-15).

The above reasoning of the Court

is totally inconsistent with the

spirit and letter of Stokes. One

point of this proceeding is to imple-

ment a decree precluding deportation.

The court's conclusion that the decree

cannot have effect because Chour was

-36-

already under an order of deportation

is to conclude that since the INS was

already violating the consent decree

Chour is not entitled to the consent

decree's protection.

Paragraph 41 of the decree, appli-

cable to Chour, requires the Immigra-

tion and Naturalization Service to

vacate any deportation orders with

respect to Chour.

Further, while as a matter of

common parlance among practitioners in

immigration law, the term, "adjustment

of status", is generally used to refer

to those people who actually undertake

final adjustment of status in the

United States; technically and

properly, the term, "adjustment of

status'', can be applied both to those

who finally adjust in the United States

«SF.

Pietra.

and those who finally obtain visas in

a place like the Canadian Consulate.

In fact, practice has changed recently,

so that the I-151, the so-called,

"green card", which is the final step

in the adjustment of status, is now

mailed from the Canadian Consulate to

the United States to most aliens who

go to the Canadian Consulate or other

consulates abroad in order to take the

final step in their adjustment of

Status.

While technically this trip to

Canada is a visa application, in fact

it is merely a step in adjustment of

Status from an alien to a permanent

resident of the United States. Thus

the Court of Appeals' affirmance of

the BIA decision, holding that Chour

is not entitled to adjust his status

-38-

under section 245, is clearly irre-

levant to the case in point. While

indeed petitioner is not eligible-for

adjustment of status under section 245,

he is nevertheless eligible for adjust-

ment of status by going to Canada

under the rules of 22 C.F.R. section

42.10, I&NA section 101(a)(16), and

section 22l(a); 8 U.S.C. section 1101

(a)(16) and 8 U.S.C. section 1201 (a).

B. Chour is Eligible For Extended

Voluntary Departure.

The Court of Appeals concluded

that Stokes was inapplicable to peti-

tioner because petitioner was ineli-

gible for extended voluntary departure.

The court stated (App. pp. 13-15):

"In view of his past refus-

al to depart voluntarily and

his absconsions he would be

denied any extension or rein-

statement of his former right

«$9.

Rete.

of voluntary departure. See,

Fan Wan Keung v. INS, 434 F.

2d 301, 304-05: (2d Cir. 1970);

Matter of Yeung, 13 I&NS Dec.

5 ."

The above reasoning assumes that

the failure of the INS to reinstate

voluntary departure is not a violation

of the Stokes decree. If Stokes

applies, the INS is precluded from not

reinstating voluntary departure, as

the INS is precluded under paragraph

41 from the following activities:

"Pending final adjudica-

tion of an I-130 spouse visa

petition, the District Direc-

tor shall not deport or

institute deportation proceed-

ings against the alien bene-

ficiary or in any manner

direct the alien beneficiary

to leave the United States if

approval of the visa petition

would make the beneficiary

eligible...for extended —

voluntary departure... ."

(Emphasis supplied. )

Eligibility for extended voluntary

-40-

departure, in turn, is controlled by

Operations Instruction 242.10(a)(6) (i).

The first requirement of O.I. 242.

10(a) is that the alien be "statutorily

eligible" for voluntary departure.

Such statutory eligibility for alien

crewmen was confirmed by the BIA in

Matter of Vera Rodriques, 10 I§&NS Dec.

113 (BIA 1962). This is consistent

with the broad purpose and language

of paragraph 41 of the Stokes decree.

The Operations Instructions con-

trolling extended voluntary departure

is 0.1. 242.10(b), which states:

"Class 6(i) may be granted

voluntary departure until the

American Consul is ready to

issue an immigrant visa and,

in the discretion of the

District Director, may be an

interim of thirty days con-

ditioned upon continuing

availability of an immigrant

visa as shown in the latest

Visa Office Bulletin and upon

«4 «

_the alien's diligent pursuit

of efforts to obtain the visa,"

In addition, the "Service policy"

with respect to granting a voluntary

departure is, according to the Immigra-

tion and Naturalization Service's own

Operations Instructions, "set forth in

O.I. 242.10(a)(6)(i)." That policy is

strictly a function of the availability

of a visa number. Petitioner's is

current. Moreover, the discretion to

deport an alien with a pending I[-130

spouse visa petition can only be

exercised by the Service where the

marriage is fraudulent. See, 0.1.

242.10(a) (25). Petitioner's bona fide

marriage precludes the INS exercise

of discretion to deport him.

The Court of Appeals relied upon

Fan Wan Keung v. INS, 434 F.2d 301

(2d Cir. 1970) for support of its

statement that petitioner would be

denied any extension of reinstatement

of his former right of voluntary depar-

ture. (App.pp. 13-15). Yet examination

of this pre-Stokes decision fully

supports petitioner's position. The

Second Circuit stated in Fan Wan Keung

as follows:

"The Service's Operations

Industructions apparently

authorized the nunc pro tunc

extension of voluntary depar-

ture, even in the cases of

crewmen. We are informed that

until recently this dispensa-

tion was accorded by District

Directors in their discretion

where they considered it

appropriate. The policy is

now changed. The District

Directors no longer extend

this privilege to crewmen,

of a general proposition,

who manage to remain by using

obvious dilatory tactics,

absent some special equities,

such as a close relative who

1s a citizen or legal resi-

dent alien.” Fan faa Kueng

=43-

v. INS, supra, at 305.

(Emphasis supplied. )

Thus, the Second Circuit recog-

nized, even before Stokes, the basic

INS policy which formed the background

for the negotiations which led to the

Stokes consent decree. It was a back-

ground which included a general policy

affording aliens married to permanent

resident aliens the opportunity of

achieving the status of permanent

resident alien. Fan Wan Keung, supra,

at 305. Thus, the conclusion by the

Court of Appeals that Chour is ineli-

gible for the protection afforded by

Stokes is error which must be righted

by this Court.

IIIT. THE SECOND CIRCUIT COURT OF

APPEALS ERRED IN ASSESSING

COSTS AGAINST PETITIONER AND

HIS ATTORNEY.

-44-

A. The Second Circuit Standard

for Imposition of Monetary.

Sanctions Is Improper and in

Conflict with the Standards

Enunciated by Other Circuit

Courts of Appeal.

During the past few years,

and in an increasing number of matters

before it, the Second Circuit has

assessed damages against counsel pur-

suant to 28 U.S.C. sections 1912 and

1927 and Federal Rules of Appellate

4. 28 U.S.C. section 1912 provides as

follows:

"Where a pecumen’ is affirmed

by the Supreme Court or a court of

appeals, the court in its discre-

tion may ig bs to the prevailing

party just damages for his delay,

and single or double costs."

5S. 28 U.S.C. section 1927 provides as

follows:

"Any attorney or other person

admitted to conduct cases in any

court of the United States or any

territory thereof who so multiplies

the proceedings in any case as to

increase costs unreasonably and

vexatiously may be required by the

court to satisfy personally such

excess costs."

-45-

a ee ee

6 7

Procedure, Rules 38 and 46(c) . By

reading these sections together, the

Court has found a number of cases

before it as warranting a fine against

counsel for bringing a "frivolous or

unreasonable and vexatious appeal".

Acevedo v. INS, 538 F.2d 918 (2d Cir.

1976); see also, Katris v. INS, 562

6. F.R.A.P., Rule 38, provides:

"If a court of appeals ‘shall

determine that an appeal is frivo-

lous, it may award just damages

and single or double costs to

appellee."

7. F.R.A.P., Rule 46(c), provides:

"A court of appeals may after

reasonable notice and an opportu-

nity to show cause to the contrary,

and after hearing, if requested,

take any appropriate disciplinary

action against any attorney who

practices before it for conduct

unbecoming a member of the bar or

for failure to comply with these

rules or any rule of the court."

¢ -46-

F.2d 866 (2d Cir. 1977); Overmeyer v.

Fidelity §& Deposit Co. of Maryland,

554 F.2d 539 (2d Cir. 1977).

In Acevedo, the leading Second

Circuit decision on point, the Court

held that where a petition seeking

review of a Board of Immigration

Appeals decision denying petitioner's

motion to reopen a deportation hearing

to apply for suspension of deportation

failed to state significant new evi-

dence for consideration by the Court,

the petition for review was utterly

frivolous and completely lacking in

any merit. The Court concluded that

the petition was interposed solely as

a delay tactic by counsel who, accord-

ing to the Court, was well aware of

its meritlessness. Double costs were

taxed personally against counsel pur-

o47-

suant to 28 U.S.C. section 1927 and

F.R.A.P., Rule 38. 538 F.2d 918 (2d

Cir. 1976).

Other Circuits, however, have

shown much greater reluctance in

assessing damages and costs against an

attorney. In Kiefel v. Las Vegas

Hacienda, 404 F.2d 1163, cert. denied

395 U.S. 9086, 89 S.Ct. 1750, 33 L.Ed.

2d 221, rehearing denied 395 U.S. 987,

89 S.Ct. 2128, 235 L.Ed. 2d 776 (7th

Cir. 1968), the Seventh Circuit stated

that the power to assess costs on an

attorney guilty of misconduct should

be exercised only in instances of a

serious and studied disregard for the

orderly process of justice. 404 F.2d

at 1167.

In U.S. v. Ross, a Sixth Circuit

case arising after Acevedo, the court

-48-

was faced with the propriety in which

situations involving a 28 U.S.C.

section 1927 issue should be invoked.

535 F.2d 346 (6th Cir. 1976). In

Ross, the court stated that it was

inappropriate to impose section 1927

sanctions for an unintended inconve-

nience to the court, no matter how

annoying it might be; personal

responsibility, stated the court,

should flow only from an intentional

departure from proper conduct, or, at

a minimum, from a reckless disregard

owed by counsel to the court. 535 F.

2d 346 at 349. Increased costs of

litigation due to counsel's inadver-

tence or negligence were specifically

found by the court as insufficient for

imposition of section 1927 sanctions.

535 F.2d 346 at 350.

-49-

The Fifth Circuit has held that

taxation of court costs against plain-

tiffs' attorneys, following entry of

summary judgment for defendants, was

erroneous where plaintiffs' attorneys

acted in good faith and upon written

authorization from their clients.

Miles v. Dickson, 387 F.2d 716 (Sth

Cir. 1967).

It is clear from the foregoing

analysis that there exists diverse

views among the Circuit Courts with

respect to the appropriate factual

circumstances required to assess

monetary sanctions against an attorney

in a proceeding before the court.

In the instant case, petitioner

contended that the BIA erred in

dismissing petitioner's Motion to

Reopen deportation proceedings against

~ $0.

him. The procedural right to appeal

to the Second Circuit pursuant to the

Petition for Review of the INS ruling

is uncontroverted in the record.

Yet under the critical circum-

stances of impending deportation fac-

ing petitioner, the Court imposed

$1,000 damages and double costs

against petitioner and petitioner's

attorney for bringing the appeal. It

is not surprising that the Second

Circuit Court of Appeals in the case

at bar also decided Acevedo. Peti-

tioner submits that the assessment of

the fine and double costs constituted

an abuse of discretion by the Court

and was in contravention with the

proper standards for imposing such

sanctions as stated by the courts in

the Fifth, Sixth and Seventh Circuits.

-5l1-

Under the opinions expressed by the

latter Circuits, petitioner's attorney

acted in a proper, professional manner.

Further, even under Acevedo

standards, petitioner submits that

the Petition for Review was neither

frivolous, meritless, nor brought. for

purposes of delay. The Petition was

filed for the purpose of seeking

reversal of the ruling of the District

Director, a ruling claimed by peti-

tioner to be clearly erroneous. There-

fore, the Second Circuit's assessment

of damages and double costs was also

improper under its own standard as

enunciated in Acevedo. (See also,

discussion of attorneys' duty under

Code of Professional Responsibility,

infra, at ITIC.)

«3%

B. Imposition of a Fine Against

Petitioner's Attorney Created

a Chilling Effect on Counsel's

Willingness to Proceed with

His Representation of Peti-

tioner, Thereby Effectively

Denying Petitioner His Statu-

tory and Constitutional Right

to Counsel.

1. Statutory Right to Counsel

Immigration and Naturalization

Service regulations provide that a

respondent in a deportation hearing

may be represented by an attorney of

his choice at no expense to the Govern-

ment. 8 C.F.R. section 242.10.

8. 8 C.F.R. section 242.10 provides

in pertinent part:

"Hearing. The special inquiry

officer shall advise the respon-

dent of his right to representation,

at no expense to the Government, by

counsel of his own choice autho-

rized to practice in the proceed-

ings and require him to state then

and there whether he desires

representation... ."'

-53-

a ces ee ee —_——

Counsel was retained by petitioner

at the proceedings before the INS.

Clearly, the logical extension of

petitioner's statutory right to coun-

sel at the hearing level reaches to

appellate motions arising out of such

hearings.

However, the assessment of damages

against his attorney has abridged

petitioner's right to the attorney of

his own choice. With the threat of

Significant fines looming over him,

the Court has created a chilling

effect on counsel's willingness to

continue zealous representation of his

client.

2. Constitutional Right to

Counsel

It has long been settled that

in criminal cases the denial of the

«Se.

Sixth Amendment right to the assis-

tance of counsel is reversible error

which cannot be cured by the applica-

tion of any harmless error rule. See,

for example, Glasser v. U.S., 315 U.S.

60 (1942). Similarly, it has long

been held that the right to counsel

means the right to effective counsel.

Powell v. Alabama, 287 U.S. 45 (1932).

In Castaneda-Delgado v. INS, 525

F.2d 1295 (7th Cir. 1975), the court

recognized that while a deportation

hearing is not a criminal proceeding,

it is fraught with serious consequences

to the alien. Id. at 1301. The

Supreme Court observed in Bridges v.

Wixon, 326 4.S. 135, 154 (1945):

"Though deportation is not

technically a criminal pro-

ceeding, it visits a great

hardship on the individual

and deprives him of the right

ao SG

to stay and live and work in

this land for freedom. That

deportation is a penalty--at

times a most serious one--

cannot be doubted. Meticu-

lous care must be exercised

lest the procedure by which

he is deprived of that liber-

ty not meet the essential

standards of fairness."

In such cases, in addition to the

serious consequences of deportation

itself, there is also the possibility

that criminal prosecutions for

violations of the immigration laws may

result under 8 U.S.C. section 1325.

Castaneda-Delgado v. INS, supra at 301.

C. Imposition of a Fine Against

Counsel Placed Him in the

Position of Possibly Breach-

ing His Ethical Duty to

Represent Petitioner According

to the Code of Professional

Responsibility.

The American Bar Association

Code of Professional Responsibility,

Canon 7, provides that "(a) lawyer

-56-

should represent his client zealously tions pursuant to DR7-101(A).

within the bounds of the law." | The attorney's dilemma is thus

While the above axiom excludes broadened should he continue with

assertion of a position in litigation zealous representation and risk further

that is frivolous, it is equally clear fines or intentionally fail to seek

that vigorous representation, when the lawful objectives of his client

brought in proceedings filed in good and consequently risk possible suspen-

faith and not as part of a frivolous sion or disbarment.

position, should not be tampered with Clearly, counsel must not be placed

by a court's assessment of monetary in the position of having to choose

sanctions against the attorney. To do between two unprofessional positions.

so places counsel in a position of : The Court of Appeals' fine, however,

compromise in which he can neither places counsel in such a predicament.

represent his client effectively nor The result is injustice for all:

fulfill his ethical obligations toward

society as an officer of the court. 9. DR7-101(A) provides in part as

follows:

Further, by failing to continue "A lawyer shall not intentionally:

(1) Fail to seek the lawful

objectives of his client through

reasonably available means per-

mitted by the law and the Disci-

plinary Rules... ."

with zealous representation, even in

the face of monetary sanctions, could

expose counsel to disciplinary sanc-

65% -58-

a es eS

petitioner is prejudiced, counsel is

compelled to compromise, and society

suffers because the administration of

justice cannot fairly proceed.

D. The Imposition of a Fine

Against Petitioner's Attorney

Without Reasonable Notice and

an Opportunity to Show Cause

to the Contrary Constituted

a Violation of the F.R.A.P.,

Rule 46(c), and Notions of

Procedural Due Process Pur-

suant to the Fifth and Four-

teenth Amendments.

Federal Rules of Civil Proce-

dure, Rule 46(c), provides as follows:

"Disciplinary Power of the

Court Over Attorneys.

A Court of appeal may, after

reasonable notice of an

opportunity to show cause to

the contrary, and after

hearing, if requested, take

any appropriate disciplinary

action against any attorney

who practices before it for

conduct unbecoming a member

of the bar or for failure to

comply with these rules or

any rule of any court."

-59-

peas we ee

In Miles v. Dickson, 387 F.2d 716

(Sth Cir. 1967), the court, while not

basing its holding on procedural

grounds, nevertheless commented that

the failure of a court to require

attorneys to personally pay court

costs pursuant to 28 U.S.C. section

1927 without notice and a hearing was

wrong.

The Second Circuit has also

recognized the procedural due process

rights of attorneys faced with section

1927 sanctions. In Hanley v. Condrey,

467 F.2d 697 (1972), the court, rather

than see continued a case which it

thought should be concluded, noted at

p. 467:

"The question of costs remains.

Section 1927 of Title 28

U.S.C. permits taxation against

any attorney personally 'who

so multiplies the proceedings

-60-

in any case as to increase

costs unreasonably and

vexatiously'.

"This litigation should now

be at an end. To assess

costs against the attorney

might, as suggested in Miles

v. Dickson, 387 F.2d 716

(Sth Cir. 1967) (per curiam)

and Fed.R.App.P. 46(c),

require notice and a hearing--

a procedure to which we

neither subscribe nor which

we reject. In any event,

further proceedings in fede-

ral courts should be avoided."

Thus, while there has not yet been

a direct holding on the procedural

aspect of section 1927, the dicta

expressed by the Second and Fifth

Circuit Courts is clear: an attorney,

as any citizen, should not be deprived

of property without first being

afforded procedural due process.

Indeed, Fed.R.App.P. 46(c) is

quite explicit with respect to the

requirements of notice and opportunity

-61-

to be heard.

The Court in the instant case,

having summarily decided that peti-

tioner's attorney brought this

proceeding in violation of section

1927, deprived the attorney of his

right to reasonable notice and

opportunity to be heard prior to the

imposition of the fine in violation

of Rule 46(c) and the due process

clauses of the Fifth and Fourteenth

Amendments to the United States

Constitution. The fine levied by the

Court should, therefore, be rescinded.

E. The Imposition of a Fine

Against Attorney for Peti-

tioner Constituted A

Violation of Principles of

Equal Protection Guaranteed

by the Fifth and Fourteenth

Amendments to the United

States Constitution.

Petitioner's statutory and

-62-

constitutional right to effective

counsel, and the chilling effect placed

upon those rights due to the fine

levied against counsel, breaches the

right to effective counsel in viola-

tion of the Equal Protection clause

of the Fifth and Fourteenth Amendments

to the United States Constitution.

In Sexton v. Barry, 233 F.2d 220,

224 (6th Cir. 1956), the court stated

that "(t)he equal protection of the

law implies that all litigants simi-

larly situated may appeal to courts

for both relief and defense under like

conditions, with like protection, and

without discrimination."

The discussion above concerning

the similarity between a criminal

defendant's right to counsel and the

status of an alien facing deportation

-63-

en ee oe

a et ee ome P

and potential criminal prosecution

is pertinent in considering the denial

of equal protection of the law. While

case law is clear that classifications

under the immigration laws need only be

supported by a rational basis to ful-

fil equal protection guarantees,

Alvarez v. District Director of INS,

$39 F.2d 1220 (1976), it is equally

apparent that counsel's reluctance to

proceed with vigorous representation

of his client's cause denies the

client effective counsel of his own

choice.

To impose upon petitioner the

burden of proceeding pro se or retain-

ing new counsel at this point in the

proceedings would cause both petitioner

and the Court undue delay and expense.

Petitioner has selected and retained

-64-

counsel of record as his legal °

representative; the actions of the

Court may cause him to proceed in this

matter under dissimilar conditions and

without the protections guaranteed to

others in similar circumstances. The

fine against counsel, therefore, has

effectively denied petitioner equal

protection.

In addition, imposition of a fine

against a privately retained attorney

pursuant to 28 U.S.C. section 1927 or

Fed.R.App.P. 38 constitutes a viola-

tion of equal protection principles.

The classification distinction in this

argument is private versus public

sector attorneys. ‘The violation of

equal protection arises from two

facets.

First, imposition of a tine

-65-

against private counsel has, as

discussed previously, a profound effect

upon his willingness to proceed with

vigorous representation. He may face

additional fines in this case; his

representation of sther clients with

Similar claims will be impeded. On

the other hand, the Government attorney

is implicitly, if not explicitly,

shielded from such losses. His pocket-

book is safe; his client, the Govern-

ment, will continue to receive

vigorous representation.

The sanctions of section 1927 and

Rule 38 have the effect of discriminat-

ing among members of the bar without

a rational basis. The fine against

the attorney for petitioner, a private

attorney, is therefore a violation of

equal protection.

-66-

Second, petitioner has researched

various cases that have imposed sanc-

tions pursuant to section 1927 and

Rule 38. No cases found involved

imposition of sanctions against a

Government attorney. It is submitted

that the courts have infairly

discriminated against private counsel

by imposing sanctions upon members of

the private sector only. Apparently,

Government attorneys are protected or,

at the least, treated differently than

private counsel. Should a meritless

prosecution be initiated, a dismissal

is granted. But no more. The Govern-

ment attorney, it seems, does not face

the possibility of a fine against him

personally.

In Biao Pan v. INS, Civ. No.

77-4026 (2d Cir. 1977), petitioner

-67-

en Oe a

an alien crewman, petitioned the

Second Circuit for a review of an

order of the BIA denying petitioner's

motion to reopen deportation proceed-

ings against him on the grounds that

the INS proceedings had been conducted

in violation of petitioner's right

to due process under both the United

States Constitution and the Code of

Federal Regulations. In turn, the

INS moved for an order dismissing the

petition for review as frivolous, and

imposing damages and double costs upon

petitioner or his counsel.

Subsequent to the filing of briefs

and affidavits in support of the

respective motions, the INS withdrew

its motion and the court remanded the

matter to the BIA for its reconsidera-

tion. Despite the frivolous and time-

-68-

consuming argument set forth by respon-

dents, the court did not impose costs

on either party.

Biao Pan is a prime example of the

absolute refusal by the court to treat

frivolous litigation brought by Govern-

ment counsel in the manner in which it

deals with alleged similar acts by

private counsel. This distinction is

without justification and is highly

prejudicial to the alien. The Govern-

ment lawyer, it appears, is free to

bring frivolous motions, but private

counsel must be ever cautious of

persistent assertion of his client's

legal rights under the law.

Petitioner submits that the legal

system in this country was not built

upon discrimination between public and

private sector attorneys and this

-69-

Court must not sanction such policy

at this time.

This distinction between Government

and private counsel is a classification

without a rational basis. Imposition

of sanctions against private counsel

is a denial of equal protection where

Similar conduct of Government attorneys

goes unpunished. Whatever the proper

standard, it must be applied equally.

In the instant case, counsel for

petitioner was fined by the Court for

bringing a frivolous appeal. Peti-

tioner submits that if it was the

Government who had filed a meritless

appeal, the case would have merely

been dismissed and no action taken

against the Government attorney. It

is upon this additional ground that

petitioner submits that private coun-

-70-

sel was denied equal protection of the

law. Imposition of the fine, therefore,

was improper and should be rescinded.

F. Assessment of Damages and

Double Costs Against Peti-

tioner Was an Abuse of

Discretion and Highly

Prejudicial.

It must also be noted that the

Second Circuit Court of Appeals imposed

the fine not oniy upon counsel but upon

petitioner as well. The arguments as

to the inappropriateness of the assess-

ment to counsel has been set forth

above at length.

Equally as unjust, if not more so,

is the assessment of damages against

petitioner, an alien crewman. As a

general rule, the alien population in

the United States is far from wealthy.

In the case at bar, much of petitioner's

legal representation has been per-

Fie

ere eee ome :

formed pro bono due to petitioner's

inability to pay counsel. Petitioner

submits, therefore, that the assess-

ment of damages in the sum of $1,000

and double costs against him personally

is ludicrous. Thus it appears that

not only is the INS, with its

virtually infinite resources, seeking

to deport petitioner, but to complete-

ly destroy him, at least financially,

as well.

«FP

CONCLUSION

For all of the reasons stated

herein, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

LAW OFFICES OF

DAVID C. BUXBAUM, P.C.

Attorneys for

Petitioner

DAVID C. BUXBAUM, ESQ.

Of Counsel

January, 1979

-73-

DECISION

For The

SECOND CIRCUIT

At a stated Term of the United

tates Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the twenty-second day of November, one

thousand nine hundred and seventy-eight.

Present: HONORABLE HENRY J. FRIENDLY

HONORARLE WALTER R. MANSFIELD

HONORABLE THOMAS J. MESKILL,

Circuit Judges,

DER-RONG CHOUR,

Plaintiff-Appellant,

Dkt. No.

-against- 78-6034

BENEDICT J. FERRO, Individ-

ually and as District Direc-

tor, Immigration and Natural-

ization Service, Buffalo,

Nivea OC Ghee

Defendants-Appellees.

Appeal from the United States

District Court for the

Southern District of New York

A-1

DECISION

This cause came on to be heard on

the transcript of record from the United

States District Court for the Southern

District of New York, and was argued by

counsel,

ON CONSIDERATION WHEREOF, it is

now hereby ordered, adjudged, and de-

creed that the Order and Judgment of

said District Court entered on February

23, 1978, dismissing the complaint be

and it hereby is affirmed.

Upon this record, including the

Government's oral request for dismissal

to which plaintiff-appellant replied,

the District Court had the power to dis-

miss the complaint without requiring

that a formal written motion be filed.

The claims asserted by plaintiff-appel-

lant were either barred by collateral

estoppel, see Chour v. Ferro, 573 F.2d

1289 (2d Cir. 1977), cort. denied, 434

U.S. 1063 (1978), Chour v. INS, 578

F.2d 464 (2d Cir. 1978), application

denied, _U.S. » 46 b. ota 3740

(May 30, 1978), or were patently frivo-

lous and lacking any merit.

s/ Henry J. Friendly

Henry J. Friendly, U.S.C.J.

s/ Walter R. Mansfield

alter R. Mansfield,

Bie és

rf, Thomas J. Meskill

omas J. Meskill, U.S.C.J.

A-2

OPINION

°NITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

September Term 1977

(Submitted: March 28, 1978

Decided: April 28, 1978)

Docket No. 78-4017

ikiclt kde ne O86 2 ee Wee ee me awe x

DER-RONG CHOUR,

Petitioner,

-against-

IMMIGRATION AND NATURALIZATION

SERVICE.

Respondent.

AEpaR Een ry oe eee UD aay een y aaa x

Before SMITH, MANSFIELD and

OAKES, Circuit Judges.

Petition for review of de-

cision of the Board of Immigration

Appeals dated February 1, 1978, denying

petitioner's application to reopen pro-

ceeding for his deportation after this

Court, on October 12, 1977, had affirm-

ed the Board's deportation order, direc-

A-3

OPINION

ting that the mandate issue forthwith,

and had affirmed an order of the Nor-

thern District of New York denying pe-

titioner's application for a writ of

habeas corpus. )

The Board's decision ordering

petitioner's deportation is affirmed.

David C. Buxbaum, Esq.,

N.Y., for Petitioner.

Robert S. Groban, Jr.,

Special Assistant United

States Attorney (Robert

B. Fiske, Jr., United

States Attorney for the

Southern District of

New York, Patrick H.

Barth, Assistant United

States Attorney, of

counsel), for Respondent.

A-4

OPINION

MANSFIELD, Circuit Judge:

Der-Rong Chour ("Chour"), an

alien Chinese crewman who in 1974 over-

stayed his authorized 29-day stay in

the United States, absconded, and was

later arrested, petitions for review of

a decision of the Board of Immigration

Appeals ("Board") dated February l,

1978, denying his application to reopen

the proceeding for his deportation to

permit him to apply for adjustment of

Status pursuant to 8245 of the Immi-

gration and Nationality Act ("Act"),

8 U.S.C. §1255.

On February 10, 1974, Chour

was admitted into the United States as

a non-immigrant crewman authorized to

remain not more than 29 days. He failed

to depart or to obtain an extension of

his stay and absconded. On July 17,

1974, he was arrested by the Immigra-

tion and Naturalization Service t“inS**}

in Boston. On July 18, 1974, deporta-

tion proceedings were instituted against

him. On August 14, 1974, after he had

been fully advised of his rights, the

order to show cause why he should not

A-5

OPINION

be deported was read and explained to

him in Chinese and English. On Sep-

tember 4, 1974, a deportation hearing

was held before an Immigration Judge

in New York City. Chour acknowledged

that he understood (1) the purpose of

the hearing, (2) the interpreter pro-

vided to assist him, and (3) that he

had a right to appe+r with his own re-

tained counsel. He elected to speak

for himself, admitted all of the

essential facts establishing deport-

ability, and accepted the INS's offer

to depart voluntarily within 30 days.

He was served with a decision and de-

portation order, both of which were

explained to him, to the effect that if

he did not depart voluntarily within 350

days he would be deported to the Re-

public of China on Taiwan or to Hong

Kong. When he failed to depart within

30 days, a warrant was issued on Novem-

ber 20, 1974, for his deportation.

Again he absconded, this time until

June 6, 1977, when he was apprehended

by the INS in Albany, New York.

A-6

OPINION

Chour next applied to the

Northern District of New York for a writ

of habeas corpus on various grounds,

including his acquisition of a labor

certification, ownership of property,

engagement to marry a permanent resi-

dent alien, and the pendency of general

amnesty legislation in Congress. How-

ever, he did not advise the district

court that he was already the subject

of a 1974 deportation proceeding in New

York or that he was the subject of a

warrant of deportation because he had

failed to depart voluntarily and had

failed to report for deportation. When

this information was adduced by the INS,

Chour attacked the 1974 deportation pro-

ceeding on due process grounds. Judge

Port of the Northern District dismissed

his petition on the ground that Chour

had not exhausted his administrative

remedies, and stayed deportation for

10 days to permit him to do so.

On July 7, 1977, Chour filed

a notice of appeal from Judge Port's

order. (Dkt. No. 77-2074). On June 20,

1977, Chour also moved to reopen his

A-7

OPINION

1974 deportation proceeding on the due

process grounds referred to above,

claiming that in view of more recent

developments (his labor certification,

engagement to a permanent resident alien,

ownership of property, etc.) his de-

portation would be unjust and he should

be permitted to adjust his status to

that of permanent resident pursuant to

§245(a) of the Act, 8 U.S.C. §1255(a).

This application was denied by Immi-

gration Judge Gordon W. Sachs on the

grounds that Chour, having entered the

United States as an alien seaman, was

ineligible for adjustment of status and

no showing had been made of lack of due

process.

Upon appeal the Board on

July 14, 1977, dismissed Chour's appeal

on the grounds that he had waived coun-

sel at his earlier deportation hearing

and that by his own admission he was

clearly deportable. Having exhausted

his administrative remedies Chour pe-

titioned this Court for review of the

Board's decision (Dkt. No. 77-4136),

thus gaining an automatic stay of de-

A-8

OPINION

portation pursuant to §106 of the Act,

8 U.S.C. 8$1105a(3), and remaining in the

United States, free on a $10,000 bond

posted by him. This petition for review

was consolidated with the appeal from

Judge Port's order, by our order dated

July 19, 1977.

On October 12, 1977, after

carefully reviewing the record, the

briefs of the parties and hearing oral

argument, in an oral ruling from the

bench we affirmed the order of the

Northern District of New York denying

Chour's petition for a writ of habeas

corpus and affirmed the Board's de-

cision with directions that the mandate

issue at once. We found Chour's claims

to be meritless and trivolous. On

October 18, 1977, we denied rehearing

and any further stay. After granting

a temporary stay on October 19, 1977,

Justice Marshall on November 14, 1977,

dissolved the stay and on November 15,

1977, Justice Brennan denied a.stay.

In the meantime Chour on

September 28, 1977, filed with the INS

A-9

OPINION

a Form I-130 petition seeking confirma-

tion that for immigration purposes his

recent marriage was bona fide. During

the period when the stay granted by

Justice Marshall was pending he applied

to the INS for withholding of deporta-

tion under asylum regulations, 8 C.F.R.

8108, and 8243 of the Act, 8 U.S.C.

81253(h), claiming that he would be

persecuted politically if the deporta-

tion order were executed, even though

no such request or grounds had been

urged in the 1974 deportation proceed-

ings. On January 25, 1978, the asylum

request was denied and Chour was ordered

by the INS to surrender for deportation

by February 1, 1978. Chour then began

an action in the Southern District of

New York to enjoin his deportation be-

cause of the INS' approval of his I-130

petition and the existence of a consent

judgment in Stokes v. United States, 74

Civ. 1022 (S.D.N.Y. 1976). Judge Pierce

issued a stay of deportation until the

matter could be heard by Judge Griesa,

who on February 9, 1978, concluded, af-

ter hearing the parties, that the action

A-10

OPINION

was "totally without merit," that this

was a type of action in which aliens

subject to deportation orders "use the

federal courts in an endless series of

meritless and dilatory tactics designed

to stall departure from the country

as long as possible," and that it was

"really a travesty" to subject the De-

partment of Justice, the INS and the

court to "this kind of tactics" in

the present case. Judge Griesa pointed

out that the granting of an 1-130 ap-

plication simply verifies that the

applicant is married to a resident of

the United States, but does not change

his status or provide him with a visa

or any right to reside in the United

States. Judge Griesa further found

that the consent decree in the Stokes

class action applies only to persons

who might be eligible for adjustment

of status under §245 and not to alien

seamen who are expressly excluded from

its provisions. He dissolved the stay,

denied injunctive relief and dismissed

the complaint.

A-11

OPINION

Immediately upon Judge

Griesa's decision being handed down

Chour's attorneys filed with us a

petition for review of the decision

of the Board of Immigration Appeals

denying Chour's application to reopen

his deportation proceeding and ordering

that ne be deported by February 1, 1978

(the date which was extended by Judge

Pierce so that Chour's injunction suit

could be heard by Judge Griesa). By

filing the petition for review Chour

again cbtained an automatic stay of

his deportation pursuant to 8106 of the

Act, 8 U.S.C. 81105a. In response to

Chour's petition for review the Govern-

ment on February 16, 1978, moved for

summary affirmance of the Board's de-

cision under review, and assessment of

damages and double costs against pe-

titioner or his attorney pursuant to

28 U.S.C. s1912 and Rule 38, F.R.A.P.,

on the grounds that the petition is

frivolous and interposed as a calculated

delaying tactic, and for referral of the

motion to this panel, which decided

A-12

OPINION

United States ex rel. Chour v. Ferro,

Dkt. Nos. 77-2074 and 77-4136 on Octo-

ber 12, 1977.

On March 14, 1978, Chour in

turn moved to consolidate his petition

for review of the Board's order (Dkt.

No. 78-4017) with his appeal from the

decision of Judge Griesa (Dkt. No. 78-

6034), assessment of damages and double

costs against the INS, referral to a

new panel, and a hearing.

DISCUSSION

Because the petition for re-

view raises for the most part substan-

tially the same issues as those raised

upon the appeal from Judge Griesa's or-

der and in our earlier decision in

‘ United States ex rel. Chour v. Ferro,

Dkt. Nos. 77-2074 and 77-4136, decided

on October 12, 1977, the appeal has

been referred to the prior panel for

decision and/or oral hearing on the

merits if deemed necessary.

The petition appears to rep-

resent one more step in an outrageous

abuse of civil process through per-

A-13

OPINION

sistent pursuit of frivolous and com-

pletely meritless claims in an effort

to stall a deportation that has been

repeatedly ordered by the Board and has

been affirmed by us. Chour's conten-

tions that he is entitled to an ad-

justment of status under $245 of the

Immigration and Nationality Act, 8

U.S.C. 81255 or for a stay of deporta-

tion under the consent decree in Stokes

v. United States, 74 Civ. 1022 (S.D.-

N.Y. 1976), are baseless. Section 245

expressly provides that it "shall not

be applicable to (1) an alien crewman."

The consent judgment entered by Judge

Brieant in Stokes® (para. 41) provides

that deportation will be stayed only

"if approval of the [1-130] visa pe-

tition would make the beneficiary eli-

gible to file an application for adjust-

ment of status under 8245 of the Act or

for extended voluntary departure, pro-

vided, however, that the District Di-

rector may seek to deport where he is

satisfied that the I-130 visa petition

is Clearly frivolous or where there

are substantial adverse facts which

A-14

OPINION

would lead to denial of adjustment of

status or extended voluntary departure."

Chour, an alien seaman, is ineligible

for adjustment of status, has not de-

parted voluntarily within the period

allowed him but, on the contrary, ab-

sconded and has been ordered to be de-

ported. Approval of his 1-130 petition

cannot cure these deficiencies. He may

not be readmitted into the United States

without a waiver of deportability which

the Attorney General will not issue.

See 8212(a)(17) of the Act, 8 U.S.C.

§1182(a)(17). In view of his past re-

fusal to depart voluntarily and his ab-

sconscions he would be denied any ex-

tension or reinstatement of his former

right of voluntary departure. Sce

Fan Wan Keung v. INS, 434 F 2d 301,

304-05 (2d Cir. 1970); Matter of Yeung,

13 I&NS Dec. 528 (BIA 1970). The INS'

approval of Chour's I[-130 petition,

moreover, does not render Chour eli-

gible for adjustment of status within

the United States; he must first seek

admission into the United States by

applying for a visa at a United States

A-15 :

OPINION

Consulate abroad, which would require

a waiver from the Attorney General in

view of the order of deportation out-

standing against Chour. See §212(a) (17)

of Act, 8 U.S.C. §1182(a)(17). Nor does

the approval of the Chour I-130 petition

permit him to remain in the United

States, Noel v. Chapman, 508 F.2d 1023,

1027-28 (2d Cir.), cert. denied, 423

U.S. 824 (1975); Sui Fung Luk v.

Rosenberg, 409 F.2d 555 (9th Cir. 1969),

any more than does an application made

on his behalf before a United States

Consulate abroad for a quota preference

and immigration visa. United States

ex rel. Fen v. Esperdy, 423 F.2d 6, 8-9

(2d Cir. 1970); Armstrong v. INS, 445

F.2d 1395, 1396 (9th Cir. 1971). In

any event, Chour has never previously

presented his Stokes theory to the

Board, which precludes review of that

claim here. Cisternas-Estay v. _ INS,

531 F.2d 155, 160 (3d Cir. 1976).

Thus, there is not even a

colorable legal or factual basis for

the relief sought before the Board or

here and, as we noted in Ballenilla-

A-16

a a i a

OPINION

Gonzales v. INS, 546 F.2d 515 at 521

(2d Cir. 1976), cert. denied, 98 Sup.

Ct. Rep. 58 (1977), "our Government

should not be forced to tolerate the

practice, all too frequently adopted by

aliens once they become subject to a

deportation order, of using the federal

courts in a seemingly endless series of

meritless or dilatory tactics designed

to stall their departure as long as

possible. See also Acevedo v. INS,

538 F.2d 918 (2d Cir. 1976).

Petitioner's motion for con-

solidation of this petition for review

with his appeal in Judge Griesa's opin-

ion (Dkt. No. 78-6034) and for assess-

ment of damages and double costs against

the Government and its attorney is

denied. The Government's motion for

Summary affirmance of the decision of

the Board of Immigration Appeals is

granted and the mandate shall issue

forthwith. Damages in the sum of

$1,000 and double costs are assessed

against petitioner and his attorney,

David D. Buxbaum, Esq.

A-17

OPINION

FOOTNOTES

28 U.S.C. §1912 provides:

"Where a judgment is affirmed

by the Supreme Court or a Court of

appeals, the court in its discre-

tion may adjudge to the prevailing

party just damages for his delay,

and single or double costs."

Rule 38, F.R.A.P. provides:

"If a court of appeals shall

determine that an appeal is frivo-

lous, it may award just damages and

Single or double costs to the

appellee."

In Stokes the plaintiffs chal-

lenged the manner in which the INS

processed spouse preference pe-

titions (1-130 petitions) and the

treatment of the alien beneficia-

ries of those petitions during

their pendency. The preference

petition procedure is the means by

which the INS verifies the family

relationship of a lawful United

States resident and an alien of the

same family. An otherwise eligible

alien with such a family relation-

ship is entitled to special pre-

A-18

wm _ -

OPINION

ference status. See 8 U.S.C.

§§1153(a)(1)(2)(4) and (5);

Stokes v. United States, 393 F.

Supp. 24 (S.D.N.Y. 1975).

The Stokes consent decree

establishes safeguards to insure,

inter alia, that an alien other-

wise eligible for permanent resi-

dence is not deported while his

1-130 petition is being processed,

Paragraph 41 of the Stokes decree,

therefore, provides that deporta-

tion of (and deportation proceed-

ings against) an alien benefic-

iary a pending I-130 petition

shall be stayed under certain cir-

cumstances. For the reasons ex-

plained, supra, those circum-

Stances are not present in this

case.

See notes 1 and 2, supra, and

28 U.S.C. $1927.

A-19

OPINION

OAKES, Circuit Judge (concurring) :

I concur in the entire judgment

except that assessing damages in the

sum of $1,000 against petitioner.

A-20

o———

78-4017

DECISION

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United

States Court of Appeals, in and for

the Second Circuit, held at the United

States Court House, in the City of New

York, on the fifteenth day of September

one thousand nire hundred and seventy-

eight.

DER-RONG CHOUR,

Petitioner,

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

Treating Petitioner's affidavit in

opposition to the verified bill of

costs as a motion to disallow the

taxing of costs,

It is hereby ordered that the

motion made herein by counsel for the

petitioner to disallow the taxing of

A-21

DECISION

double costs and damages against

David C. Buxbaum, Esq. individually

and further, to reconsider the assess-

ment of double costs and damages

be and it hereby is denied.

s/ J. Joseph Smith

J. Joseph Smith

s/ Walter R. Mansfield

Walter R. Mansfield

s/ James L. Oakes

James L. Oakes,

Circuit Judges

A-22

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.