Appendices — Noel v. Chapman

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UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

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eS

No. 86—September Term, 1974.

(Argued November 8, 1974 Decided January 3, 1975.)

Docket No. 74-1447

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Cr

RopotpHe Nort, Emiris Nort, Eppy Antoine Petit and

Yanick Perit, on Behalf of Themselves, and all Aliens

in the United States similarly situated,

Plaintiff s-Appellants,

—against—

Lronarp H. Cuapman, as Commissioner of the Immigra-

tion and Naturalization Service and So: Marks, as New

York District Director of the United States Immigra-

tion and Naturalization Service,

Defendants-A ppellees.

ee

Corr

Before:

Kaurman, Chief Judge,

ANDERSON and MuLuican, Circuit Judges.

Appeal from an order of the United States District

Court for the Southern District of New York, Hon. Lee P.

Gagliardi, Judge, denying plaintiffs’ motion for a prelim-

inary injunction restraining the defendants from imple-

menting a challenged policy and deporting plaintiffs.

Affirmed.

_—ee

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EPRI RNS TR RES CAE OE

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Leon Frrepman, New York, New York (Amer-

ican Civil Liberties Union Foundation, New

York, New York, Meivin L. Wulf; Pollack

& Kramer, Brooklyn, New York; Fried,

Fragomen & Del Ray, New York, New York,

Austin T. Fragomen, Jr., Martin L. Roth-

stein, of Counsel), for Plaintiffs-A ppellants.

Lyp1a E. Morcan, Special Assistant United

States Attorney (Paul J. Curran, United

States Attorney for the Southern District

of New York, Mary P. Maguire, Special

Assistant United States Attorney, of Coun-

sel), for Defendants-Appellees.

es

or

Muuuiean, Circuit Judge:

This is an appeal from an order of Hon. Lee P. Gagliardi,

United States District Judge for the Southern District

of New York, entered on February 8, 1974, denying the

motion of the appellants for a preliminary injunction in

accordance with his opinion of February 6, 1974. We

affirm.

I

Rodolphe Noel is an alien and a native and citizen of

Haiti. He was admitted to this country on May 24, 1969

as a non-immigrant visitor for pleasure. This status per-

mitted him to stay here for two months. He did not

make a timely departure but remained here illegally until

he was apprehended by agents of the Immigration and

Naturalization Service (INS) on June 15, 1972. Deporta-

tion proceedings were thereupon promptly commenced. At

a hearing on June 27, 1972, Noel admitted that he was

deportable and represented that he was willing and able

to leave the country at his own expense. He was given

i

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until September 27, 1972 to depart voluntarily. He again

failed to leave and a warrant of deportation issued on

July 12, 1973. Noel was advised by letter to report on

August 21, 1973 for deportation. Instead of reporting,

Noel requested an extension of his time to depart for an

indefinite period because, on April 13, 1973, he had mar-

ried Emiris Noel, a lawful permanent resident of the

United States. This marriage, he urged, had exempted

him from the requirement of obtaining a labor certifica-

tion before applying for an immigration visa. 8 U.S.C.

§ 1182(a)(14). If an indefinite extension of voluntary de-

parture were granted, Noel would, in effect, be allowed

to remain in this country an additienal period of as much

as two years until a visa became available. The request

was denied but deportation was stayed for seven days

to permit the institution of court action.

Antoine Petit’s position is like unto Noel’s. He is an

alien and a native and citizen of Haiti who was admitted

here on August 4, 1970 as a visitor for pleasure for a two-

month stay. He did not leave but rather obtained employ-

ment in violation of his non-immigrant status. Londono v.

INS, 433 F.2d 635 (2d Cir. 1970) (per curiam). He was

apprehended on June 7, 1973. Deportation proceedings

were promptly commenced, and, at his hearing on June 8,

1973, Petit admitted that he was deportable and requested

that he be permitted to depart voluntarily. He was ex-

tended the privilege of voluntary departure until July 8th,

1973. Instead of departing, Petit married Yanick Petit on

June 26, 1973. His bride had entered the United States a

week before as a permanent resident immigrant. Petit also

applied for an extension of voluntary departure until a

visa became available. The District Director, by letter dated

July 18th, 1973, denied the request and ordered his depar-

ture by July 27th, 1973. Petit did not leave and, on August

ik Tas RNR

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6, 1973, a warrant of deportation was issued, ordering his

departure for Haiti on September 5, 1973.

On August 24, 1973, Noel and Petit and their brides com-

menced this action in the United States District Court for

the Southern District of New York, seeking a declaratory

judgment that the policy of the INS as to extensions of

voluntary departure for the relatives of resident aliens was

unconstitutional, and further seeking a preliminary injunc-

tion enjoining the INS from deporting Noel and Petit.

While initially commenced as a class action, the class claim

has since been abandoned. Although technically the appeal

here is from an order denying a preliminary injunction, the

opinion of the court below finally determined the underly-

ing legal and constitutional issues so that the case is ripe

for plenary appellate review. Sound judicial administration

requires us to avoid subsequent unnecessary proceedings in

the district court. See FTC v. Cinderella Career & Finish-

ing Schools, Inc., 404 F.2d 1308, 1311 (D.C. Cir. 1968) ; Hur-

witz v. Directors Guild of America, Inc., 364 F.2d 67 (2d

Cir.), cert. denied, 385 U.S. 971 (1966) ; 9 J. Moore, Federal

Practice J 110.25[1] (2d ed. 1973).

Il

It is undisputed that aliens who are the parents, children

of spouses of an American citizen may enter the country

without numerical limitation and need not obtain labor cer-

tification, regardless of where they are from. 8 U.S.C.

§§1151(b) & 1182(a)(14). Aliens who are the parents,

children or spouse of a resident alien and who are not from

the Western Hemisphere are also exempt from the labor

certificate requirement, id. 4 1182(a)(14), and receive a

special right of preference over others seeking a visa with-

in the relevant quota limit of 170,000, id. § 1153(a). How-

ever if the aliens are from the Western Hemisphere and

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are parents, children or spouses of a resident alien, they

are exempt from the labor certificate requirement, id.

§ 1182(a)(14), but they receive no preference rights, i.e.,

they, along with all other Western Hemisphere aliens, may

obtain visas subject to the 120,000 numerical quota, Act of

Oct. 3, 1965, Pub. L. No. 89-236, §21(e), 79 Stat. 921. These

differences in treatment between aliens’ and citizens’ rela-

tives and between Eastern Hemisphere and Western Hemi-

sphere alien relatives of resident aliens were specifically

provided for by the 1965 major congressional amendments

to the Immigration and Nationality Act which abolished

the national origins quota system. Act of Oct. 3, 1965,

supra.*

Since at least 1952, the law has provided that the priv-

ilege of voluntary departure may be granted to a deportable

alien at the discretion of the Attorney General. Immigra-

tion and Nationality Act of 1952, ch. 5, § 244, 66 Stat. 214,

presently codified at 8 U.S.C. § 1254. By regulation, the

authority to extend the time within which to voluntarily

depart is within the sole discretion of the District Direc-

tor of the INS. 8 C.F.R. § 244.2. INS policy between 1968

and June 1972 in the New York District had been more

liberal than that elsewhere in the nation. Western Hemi-

sphere aliens, such as Noel and Petit, who were in this

country and married to permanent resident aliens had been

routinely granted extended voluntary departure until an

immigrant visa became available. However, on June 27,

1972, Congressman Rodino, Chairman of the House Judi-

ciary Committee, advised the Commissioner of INS that

hearings of his Subcommittee on Immigration and Na-

1 Prior to 1965, immigration from the Western Hemisphere was not

numerically controlled. The prior non-quota status of such aliens was

abolished by the 1965 amendments and the special annual quota of

120,000 was established, separate from the annual 170,000 worldwide

quota.

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tionality had indicated that the employment of illegal aliens

in this country was unfavorably influencing the domestic

job market and that routinely permitting them to remain

in the United States to await visas was no longer justifiable,

The Service informed all its District Directors that, as of

July 31st, 1972, Western Hemisphere alicns should not rou-

tinely be granted extended departure time, but rather

should be offered that privilege only in those cases where

compelling circumstances warranted the relief. On April

10, 1973, the policy was liberalized to provide that the

earlier New York policy granting extended departure would

be applied to those aliens who were present in the United

States and who had the requisite family status on or before

April 10, 1973. Neither Noel nor I’etit was married on

April 10, 1973, and hence each is subject to deportation,

which has been voluntarily extended by the Service until

this litigation is terminated.

Had Noel and Petit married American citizens they

would not have been subject to numerical immigration

limits. 8 U.S.C. §1151(b). The INS policy with respect to

such aliens is ts allow them the privilege of an extension

of voluntary departure until they obtain visas, which in-

volves a significantly shorter wait than in the ease of an

alien married to a resident alien who is subject to nu-

merical limitations. Appellants contend that the INS policy

is illegal. They claim (a) that there is nothing in the 1965

amendments to the law which requires the INS to distin-

guish between immediate family members of resident aliens,

on the one hand, or of citizens, on the other, for the purpose

of setting voluntary departure dates; (b) that the policy

of the INS violates the equal protection concepts inherent

in the due process clause of the fifth amendment, and con-

2 If a classification would violate the equal protection clause of the

fourteenth amendment, then it would also be invalid under the due

process clause of the fifth amendment. Johnson v. Robison, 415 U.S.

BELLS CIID Oe POM ID LILIA IE EDEL IY LIE IE IO LSAT GOONS LDR thy EON

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stitutes an abuse of administrative discretion; and (c) that

the policy was issued in violation of the Administrative

Procedure Act, 5 U.S.C. § 553. They seek to have the policy

voided and to receive the benefits of the old policy under

which they may await visas here along with the immediate

relatives of American citizens.

Ill

The attack upon the constitutionality of the policy of the

Service is bottomed upon the coniention that alienage is

a suspect classification, that, since the policy provides for

disparate treatment of the alien spouses of citizens and

resident aliens, and, furthermore, since the classification

impinges upon the fundamental right of the family to re-

main intact, the policy must be subject to strict scrutiny.

Graham v. Richardson, 403 U.S. 365 (1971).

The cases relied upon by appellants are not controlling

here. In Graham v. Richardson, supra, the Court found un-

constitutional two state programs which denied welfare

benefits to non-citizens or granted them only to aliens who

had resided in the United States for a specified time. In

Sugarman v. Dougall, 413 U.S. 634 (1973), the Court found

that a New York statute violated equal protection rights

since it provided that only citizens would be eligible for

civil service appointments. In Jn re Griffiths, 413 U.S. 717

(1973), the Court on a similar basis invalidated a citizen-

ship requirement for admission to the Connecticut bar ex-

amination. These cases involved action by states which

discriminated with respect to the rights and privileges

which persons living in this country possess. None involved

the power of INS to administer the immigration laws of

961, 364 n.4 (1974); Bolling v. Sharpe, 347 U.S. 497 (1954). The

fourteenth amendment applies to the states but not to the federal gov-

ernment, which is restricted only by the fifth amendment.

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the United States, which by their very nature involve the

question of alienage.*

The Supreme Court has consistently held that Congress

has plenary power in the area of immigration. Thus in

Galvan v. Press, 347 U.S. 522 (1954), Mr. Justice Frank-

furter wrote:

Policies pertaining to the entry of aliens and their

right to remain here are peculiarly concerned with the

political conduct of government. In the enforcement

of these policies, the Executive Branch of the Govern-

3 In an effort to escape the argument that Graham, Sugarman and

Griffiths involved actions by states infringing the rights of aliens, appel-

lants also cite several cases in which Federal restrictions upon the rights

of aliens have been struck down. Mow Sun Wong v. Hampton, 500 F.2d

1031 (9th Cir. 1974), cert. granted, 42 U.S.L.W. 3678 (June 10, 1974);

Ramos v. United States Civil Service Comm’n, 376 F. Supp. 361 (D.P.R.

1974) (three-judge court); Diaz v. Weinberger, 361 F. Supp. 1 (S.D.

Fla. 1973) (three-judge court). Briefly stated, these cases hold that

exclusion of aliens from federal civil service employment and imposi-

tion of a durational residency requirement as a condition for eligibility

for Medicare are unconstitutional. With the Supreme Court cases dis-

eussed above, these cases do not go further than to declare that the

federal and state governments cannot treat aliens legally residing in this

country differently from citizens with regard to certain rights or priv-

ileges. The Supreme Court has stated the essential significance of these

eases as follows:

The Fourteenth Amendment and the laws adopted under its au-

thority thus embody a general policy that all persons lawfully in

this country shall abide “in any state” on an equality of legal priv-

‘ileges with all citizens under non-discriminatory laws. :

Takahashi v. Fish § Game Comm'n, 334 U.S. 410, 420 (1948), relied

upon in Graham v. Richardson, supra, 403 U.S. at 374.

These authorities are inapposite in the context of the enforcement of

the immigration laws against aliens who, rather than living lawfully

in this country, are by their own admission deportabie. An examination

of some of the cases cited by appellants themselves reveals a recognition

by the courts of the relevancy of the fact of alienage in certain situa-

tions and the breadth of executive power over enforcement of the immi-

gration laws. Sugarman v. Dougall, 413 U.S. at 646-49; Kleindienst v.

Mandel, 408 U.S. 753, 765-67 (1972); Graham v. Richardson, 403 U.S.

at 376-80; Ramos v. United States Civil Service Comm’n, 376 F. Supp.

at 366 n.8.

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ment must respect the procedural safeguards of due

process .... But that the formulation of these policies

. is entrusted exclusively to Congress has become about

as firmly embedded in the legislative and judicial

tissues of our body politic as any aspect of our gov-

ernment.

347 U.S. at 531 (citations omitted).

Recently, in Kleindienst v. Mandel, 408 U.S. 753, 766 (1972),

the Court reaffirmed the plenary power of Congress, quot-

ing with approval the opinion of the first Mr. Justice Harlan

in Lem Moon Sing v. United States, 158 U.S. 538, 547

(1895) :

“The power of Congress to exclude aliens altogether

from the United States, or to prescribe the terms and

conditions upon which they may come to this country,

and to have its declared policy in that regard enforced

exclusively through executive officers, without judicial

intervention, is settled by our previous adjudications.”

There can be no doubt but that Noel and Petit as unad-

mitted and non-resident aliens have no constitutional right

to enter and to remain in this country. See Galvan v. Press,

supra, 347 U.S. at 530-32. It is equally clear that their wives

as resident aliens have no constitutional right to keep them

here on the theory that the integrity of the family is pro-

tected by equal protection principles. The cases relied upon

by appellants to support the contrary contention, Loving

v. Virginia, 388 U.S. 1 (1967) and Stanley v. Illinois, 405

U.S. 645 (1972), involved interferences by states and not

INS, and thus cannot control decision in an area in which,

as we have noted, the Government has broad powers.

Other precedents suggest the error of appellants’ position.

In Zemel v. Rusk, 381 U.S. 1 (1965), the Court upheld the

8 GLORIES SRL OD

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right of the Government to refuse to validate an American

passport for travel to Cuba despite the claim that there was

an interference with the constitutional right of the citizen

to travel. In Kleindienst v. Mandel, supra, the Court up-

held the refusal of the Attorney General, through INS, to

waive visa requirements of an alien scholar despite the

claim of American intellectuals that their first amendment

rights to hear, speak with and debate the foreign professor

were violated. More directly in point is Silverman v.

Rogers, 437 F.2d 102 (1st Cir. i970), cert. denied, 402

U.S. 983 (1971), in which the court refused to enjoin the

deportation of an alien who was married to an American

citizen despite the claim that the action was unconstitu-

tional sinee it destroyed the constitutional rights of the

parties to live together in marriage. The same argument

was rejected in Swartz v. Rogers, 254 F.2d 338 (D.C. Cir.),

cert. denied, 357 U.S. 928 (1958). Judge Prettyman com-

mented succinctly:

Certainly deportation would put burdens upon the

marriage. It would impose upon the wife the choice

of living abroad with her husband or living in this

country without him. Brt deportation would not in any

way destroy the legal union which the marriage created.

The physical conditions of the marriage may change,

but the marriage continues. Under these circumstances

we think the wife has no constitutional right which is

violated by the deportation of her husband.

254 F.2d at 339.

In view of the plenary power vested in Congress to fix

and in the executive to enforce, the terms and conditions of

entry and stay in the United States, alienage cannot be a

suspect classification in this context, nor is there an inter-

ference with any fundamental rights to marry and to raise

SE PSOE IO CO OE ELLE EIT EO DERE EE PML OOOO SO BEAT .

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afamily. This being so, it follows that the strict or compell-

ing interest test espoused by appellants cannot be applied

in ths case.

The Government has argued that the appropriate stan-

dard of review of the INS policy before us is the flexible

approach taken by this court in Boreas v. Village of Belle

Terre, 476 F.2d 806 (2d Cir. 1973). It had been suggested

that Supreme Court doctrine in the equal protection area

had evolved from a two-tiered standard to a less rigid

formula which allowed for consideration of factors other-

wise largely ignored. Gunther, The Supreme Court, 1971

Term—Foreward: In Search of Evolving Doctrine on a

Changing Court: A Model for a Newer Equal Protection,

86 Hary. L. Rev. 1 (1972). Although the precise contours

of an appropriate intermediate test remained somewhat

unclear, Coinmment, Equal Protection in Transition: An

Analysis and a Proposal, 41 Fordham LL. Rev. 605 (1973),

this court applied that test in Boraas. However, the Su-

preme Court refused to apply an intermediate test in

San .Antonio School District v. Rodriquez, 411 U.S. 1 (1973),

despite the strong urging of a dissent, 411 U.S. at 98-110

(Marshall, J., dissenting), citing, infer alia, Gunther, supra.

More recently, the Supreme Court reversed the decision of

this court in Boraas and decided the issue of certain zoning

restrictions on the basis of the traditional limited scrutiny

standard. Village of Belle Terre y. Boraas, 416 U.S. 1

(1974). It is thus unclear whether or not the Court accepts

the intermediate test which courts and scholars had per-

ceived in some of its recent decisions. Citizens Committee

for Faraday Wood vy. Lindsay, slip op. 585, 589 n.5 (2d Cir.

Dec. 5, 1974). However, even if the intermediate test re-

tains some vitality, we conclude, in light of the extensive

power over immigration possessed by the INS, that the

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limited scrutiny test should be applied here, as it was in

Rodriguez and Boraas, supra.

There is a rational relationship which supports the policy

of INS under attack here. The 1965 amendments reflect

the purpose of Congress “to protect the American economy

from job competition and from adverse working standards

as a consequence of immigrant workers entering the iabor

market ....” S. Rep. No. 748, 89th Cong., 1st Sess.,

1965 U.S. Code, Cong. & Admin. News. 3329. It was the

Congress which made the distinction between immediate

relatives of American citizens and permanent resident

aliens and which entrusted the Attorney General with

jurisdiction to grant extended voluntary departures to

Western Hemisphere aliens. Although this policy was ex-

ercised liberally in the New York District, by 1972 a long

waiting list of such aliens developed and the wait for

an immigrant visa approached the period of two years.‘

Western Hemisphere aliens were coming to the United

States in large numbers and remaining illegally in the

expectation of a marriage which would assure their con-

tinuing residence here. In view of domestic employment

problems which continue to affect American workers, the

policy of INS to discourage the practice is understandable

and certainly bears a rational and substantial relation-

ship to the avowed purpose of Congress to protect the

American economy. Wong Wing Hang v. INS, 360 F.2d

715, 718-19 (2d Cir. 1966). The fact that greater liberality

is accorded to the spouses of American citizens is, in our

view, a matter of the discretion of INS which, as we

have pointed out, is plenary in this area.

4 The appellants admit in their brief that “[u]nder present conditions,

after the filing of a Western Hemisphere visa application and the con-

temporaneous assignment of a priority date for visa assignment, the

subsequent wait for visa assignment *9n be as long as 22 months or

more.”

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Certainly there is uo abuse of discretion in the cases

pefore us. Both Noel and Petit had been initially granted

the privilege of voluntary departure pursuant to their re-

quest, but had then abused it. Under these circumstances,

there is no reason for judicial interference. See Bowes

v. INS, 443 F.2d 30 (9th Cir. 1971) (per curiam) ; United

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

(2d Cir. 1970). In fact, granting the relief sought would

place Noel and Petit in a position of precedence over

those Western Hemisphere aliens who have made appli-

cations for visas in regular course and who are awaiting

their turn for admission. There is no reason to prefer those

who have flouted the immigration laws, which permitted

their entry for a limited time and purpose, over those

who have steadfastly and patiently followed legal pro-

cedures.

IV

The appellants here finally contend that the INS policy

is invalid since it violates the Administrative Procedure

Act, 5 U.S.C. § 551 et seq. Section 553(b) & (c) requires

that an agency which proposes to issue a rule must pub-

lish a notice in the Federal Register indicating the time,

place and nature of the public rulemaking procedure, and

give interested parties an opportunity to participate in

the rulemaking by submission of data. It is admitted that

no such notice was provided here. Nor is there any con-

tention made that the appellants had any actual notice

of the INS policy change which would excuse publication

in the Federal Register. See United States v. Aarons,

310 F.2d 341, 348 (2d Cir. 1962).

Although the Act does exempt from judicial review

agency action which is committed to agency discretion by

law, 5 U.S.C. § 701(a)(2), it seems settled that we do have

jurisdiction to review exercises of INS discretion to de-

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termine whether they are arbitrary or capricious. See Foti

v. INS, 375 U.S. 217, 228-30 (1963); United States ex rel.

Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957). On

this basis we have already determined that there was no

such abuse here, Although no authority precisely in point

has been found, it would scem clear that we also have juris-

diction to determine whether or not INS followed the Act's

rulemaking procedures. INS argues that the appellants

have no standing to attack the procedure since none of

them was married at the time the change in policy was

made, Mrs. Petit was not even in the country on August

1, 1972 or on April 10, 1978, when the policy was made and

modified respectively; her husband was not apprehended

until June, 1973; and both Noel and Petit had represented

prior to their marriages that they would leave voluntarily.

The status or whereabouts of Mrs, Noel does not appear

in the record; we k»ow only that she did marry her hus-

band on June 27, 1973, which was after the dates in ques-

tion. We need not, however, reach the question of standing

here sinee section 553(b)( A) exempts “general statements

of policy” from the notice requirements of section 553(b).

The court below found that the August i, 1972 policy and

the April 10, 1973 modification are within the statutory ex-

ception for general statements of policy. While the dis-

tinction between a rule as defined in section 551(4), which

must be published, and a “general statement of policy,”

which is not defined in the Act, is enshrouded in consider-

able smog, we hold that the policy statements complained

of were properly held to be within the “general statements

of policy” exception.°

5 Appellants relied in their brief upon'a decision by Judge Motley

granting a motion for a preliminary injunction in Felipe Demaren v.

Attorney General, 73 Civ. 1079 (S.D.N.Y. 1973). In that case, the

plaintiff sought injunctive relief against denial of a stay of deportation

pursuant to a policy similar to the one before us, and the court held that

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In the first place, the regulation governing the issue of

extensions of time to depart which is here relevant ex-

plicitly provides that the “{a]uthority to extend the time

within which to depart... is within the sole jurisdiction

of the district director.” 8 C.F.R. § 244.2. The “instrue-

tions” complained of in this case do not purport to amend

the published regulation or to oust the District Director

of his “sole” discretion. In fact, the District Director of

New York was the only INS officer who “routinely” ex-

tended the stay in the case of an alien married to a res-

ident alien; the practice in the rest of the country was

otherwise. We construe the instruction to be simply a

statement by the agency of its general policy as a guide-

line for the District Directors. A distinctive characteristic

of the general policy statement was indicated by Judge

Friendly when he stated in his Holmes Lectures that “one

of the values of the policy statement [is] the education of

agency members in the agency’s work.” H. Friendly, The

Federal Administrative Agencies 145-46 (1962) ( emphasis

added). One scholar has suggested that “[i]t may be that

‘general statements of policy’ are rules directed primarily

at the staff of an agency describing how it will conduct

agency discretionary functions, while other rules are di-

rected primarily at the public in an effort to impose ob-

ligations on them.” Bonfield, Some Tentative Thoughts on

Public Participation in the Making of Interpretative Rules

and General Statements of Policy under the APA, 2:

Admin, L. Rev. 101, 115 (1970-71). See also Parker, The

the policy ought to have been published pursuant to 5 U.S.C. § 553(b).

However, subsequent to the filing of briefs in the case before us, Judge

Motley vacated the preliminary injunction in Demaren, denied a motion

= & permanent injunction and dismissed the complaint, concluding on

urther consideration that there was no requirement that the policy at

issue be published pursuant to section 553(b).

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A.P.A.: A Study in Overestimation, 60 Yale L.J. 581, 598

(1951).°

The same thought is expressed in the so-called “substan-

tial impact” test, which places within the rulemaking pro-

cedure only those rules which have “a substantial impact

on those regulated,” Texaco, Inc. v. FPC, 412 F.2d 740, 744

(3d Cir. 1969), that is, ordinarily rules that change “exist-

ing rights and obligations,” Lewis-Mota v. Secretary of

Labor, 469 F.2d 478, 482 (2d Cir. 1972).7 We cannot con-

clude that the instructions at issue here changed the exist-

ing right of the appellants to have their applications for

extensions of time to depart authorized in the sole discre-

tion of the district director. As noted below, the appellants

may still be entitled under the regulations to deferred vol-

untary departure on the basis of hardship.

The INS policy under attack here, considered according

to the appropriate equal protection standard, does not vio-

late the fifth amendment, and there was clearly no abuse of

administrative discretion. Since the policy was a general

statement of policy rather than a rule, there was no vio-

lation of the publication requirement of the APA. We con-

clude, therefore, that the decision below must be affirmed.

Affirmed.

6 See 7.8.C. Motor Freight Lines, Inc. v. United States, 186 F. Supp.

777, 786 (8.D. Tex. 1960) (three-judge court), aff’d ner curiam, 366

U.S. 419 (1961) (regulation governing internal management of an

agency need not be published because it was not designed for the guid-

| ance of the public).

7 See also Nader v. Butterfield, 373 F. Supp. 1175, 1178 (D.D.C. 1974) ;

Continental Oil Co. v. Burns, 317 F. Supp. 194, 197 (D. Del. 1970);

Pharmaceutical Mfgrs. Ass’n v. Finch, 307 F. Supp. 858, 863 (D. Del.

1970); National Motor Freight Traffic Ass’n v. United States, 268 F.

Supp. 90, 96 (D.D.C. 1967) (three-judge court), aff’d per curiam, 393

U.3. 18 (1968); Seaboard World Airlines, Inc. v. Gronouski, 230 F.

Supp. 44, 46 (D.D.C. 1964).

Ne ODN RPA TEAL EE ED LAN ERLE RNR BIN Ny SREY PA YL SSIES PARTE i

OEE SOE Fee Set tae a TD PRET Ow

-l7a-

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RODOLPHE NOEL, FMIRIS NOEL, EDDY

ANTOINE PETIT, and YANICK PETIT,

on Behalf of Themselves and all

Aliens in the United States

similarly situated, OPINION

Plaintiffs,

73 Civ.

-against- 3682

JAMES F. GREEN, as Commissioner

of the Immigration & Naturaliz- #40347

ation Service, and SOL MARKS, as

New York District Director of

the United States Immigration &

Naturalization Service,

Defendants.

x oe 86468 ee ee 688 lhl6Ute 88 ee ee 8666 ee oo 0688 an eo 608 ii iid ee

GAGLIARDI, D. J.

This is an action by Rodolphe Noel,

o%) fa

ities i as

Emiris Noel, Eddy Antoine Petit and Yanick

Petit on behalf of themselves and other

aliens similarly situated challenging the

policy of the Immigration and Naturalization

Service (hereinafter the Service) which denies

to Western Hemisphere aliens married to per-

manent resident aliens and illegally in this

country awaiting issuance of a visa the dis-

cretionary relief of an extended departure

date, except upon a showing of compelling

1p PIES EAE VURAWI OC ETE II tt MI TILER LENE. OE, AEF

-18a-

factors. By motion for a preliminary injunc-

tion pursuant to Rule 65 of the Federal Rules

of Civil Procedure plaintiffs seek an order

restraining the deportation of Rodolphe Noel

and Eddy Antoine Petit and restraining the

implementation of the policy pending the

determination of this declaratory judgment

action. The motion for preliminary relief

is denied upon examination of the affidavits

submitted by the parties. Dopp v. Franklin

National Bank, 461 F.2d 873, 979 (2d Cir.

1972).

Rodolphe Noel, a native and citizen of

Haiti, was admitted to this country as a non-

immigrant visitor in May, 1969 on 2 two month

temporary basis. Having remained longer than

permitted, Noel was eventually apprehended by

the Service on June 15, 1972, and deportation

proceedings against him were commenced the

following day. During the course of the pro-

ceedings, Noel applied for and was granted the

discretionary relief of voluntary departure

pursuant to which he was to depart by Septem-

ber 27, 1972, or, failing to do so, a deporta-

tion order to Haiti would become effective.

A warrant of deportation was issued, effective

August 21, 1973, when Noel failed to comply

ith the order, On Auguat 20, 1973 Noel. Jj...

requested the District Director to extend the

date for his voluntary departure on the basis

of his marriage on April 19, 1973 to plaintiff,

| Mrs. Emiris Noel, a permanent resident alien

| of the United States until such time as a visa

became available. The application was denied.

birrcne a EE oO a ie a a eee ee a Gre he Sern tee DEFER IE, ghee

b=»

-19a-

Plaintiff, Eddy Antoine Petit, a native

and citizen of Haiti, is also presently subject

to a warrant of deportation. Similarly admit-

ted for two months as a non-immigrant visitor

in August, 1970, Petit remained longer than

permitted, and he was apprehended by the Ser-

vice on June 7, 1973. At his deportation

hearing, Petit also applied for and was granted

the discretionary relief of voluntary departure.

He was given thirty days in which to leave, or

in the alternative, an order of deportation

to Haiti would issue. Prior to the expiration

of the thirty day period, Petit married plain-

tiff, Mrs. Yanick Petit on June 26, 1973.

Proceeding on the same basis as plaintiff Noel,

Petit made an application for suspension of

voluntary departure until a visa became avail-

able. Petit's request was denied, and depart-

ure was set for July 27, 1973. Following his

failure to depart, the Service issued a warrant

of deportation effective September 5, 1973.

Deportation of both Noel and Petit has been

voluntarily stayed by the Service pending

decision on this motion.

Section 244(e) of the Immigration and

Nationality Act, 8 U.S.C. §1254(e), provides

that in the course of a deportation proceeding

-an_alien. ivi -

tary departure. The Regulations permit the

Special Inquiry Officer in his discretion to

specify the time within which the alien must

depart. 8 C.F.R. §244.1 (1973). “Authority

to extend the time within which to depart

voluntarily specified initially by a special

inquiry officer or the Board is within the

sole jurisdiction of the district director."

8 C.F.R. §244.2 (1973).

-20a-

To mitigate the hardship an order of

deportation has on a Western Hemisphere alien

married to a permanent resident alien and

illegally in this country, the District Dir-

ector in New york followed a policy from

1968 through part of 1972 of granting an exten-

sion of voluntary departure to those deport-

able aliens pending issuance of a permanent

visa.+ However, hearings conducted by the

Subcommittee on Immigration and Nationality

of the House of Representatives Committee on

the Judiciary in early 1972 revealed the

adverse effect such a policy was having on

the domestic labor market. Moreover, by

: 1972 the large number of persons from the

Western Hemisphere seeking the limited

wary Te |

a a iis

number of available visas resulted in a sub-

stantial waiting list.2 Based on this infor-

mation and a recommendation of the Subcommit-

tee's Chairman, Congressman Peter W. Rodino,

; Jr., the Service established guidelines with

respect to extended voluntary departures

effective August 1, 1972. Under the altered

E policy, an alien's status of marriage to a

- ‘permanent resident alien is insufficient in

; itself to warrant deferred departure; stays

are to be granted only in individual cases

j upon a showing of compelling factors. See

Memorandum, Associate Commissioner, Operations

to Ali District Directors, et al., July 17,

1972, p. 2.

In response to pending legislation

introduced in Congress which wil! significantly

change the status of Western Hemisphere aliens

with respect to preference quotas3 and adjust-

ment of status,4 and upon the recommendation

BP Pi QPL OLE LO, LEE LE ELLEN OLIN LE LIOP LE EES PEL LEI i LEELA Yi See A 1h 2

-2la-

of Congressman Rodino, the Service announced

on April 11, 1973 that Western Hemisphere

alien spouses of permanent resident aliens

could, as a matter of discretion, be granted

an extended voluntary departure. Less than

two weeks later, the Service confined the

modification to those aliens who were in the

country and married to a permanent resident

alien as of April 10, 1973. Telegram dated

April 20, 1973 from Acting Commissioner

Greene. All other Western Hemisphere aliens

who entered the country and married a perman-

ent resident alien after that date are treated

under the policy effective August 1, 1972.

The Service maintained that this modification

was adopted to delay "enforcement of departure

of specified relatives who are already in the

United States," but "not adopted as an invita-

tion to aliens to thereafter enter this country."

See Memorandum, Associate Commissioner, Opera-

tions to Regional Commissioner, San Pedro,

California, May 16, 1973, p. 2.

Under Sectio 201(b) of the Immigration

and Nationality Act, 8 U.S.C. §1151(b), aliens

who are the children, spouses or parents of

United States citizens are classified as

"immediate relatives" and may be granted

immigrant visas without regard to numerical

limitations or the hemisphere of origin. Once

so classified, such relatives may obtain a per-

manent visa within a matter of months. Con-

sequently, an alien spouse of a United States

citizen is generally accorded an extension of

voluntary departure pending issuance of a

permanent visa.

i Lai gibi

WRT eT Ee re een

SR Reema

Jae

eh RNR WER

Pabmiceth Kid SADE BE

-22a-

Plaintiffs contend that the August l,

1972 policy and its April 10, 1973 modifica-

tion constitute: (1) an arbitrary, capricious

and gross abuse of administrative discretion;

(2) a violation of the constitutional guaran-

tee of equal protection of laws; (3) a viola-

tion of the publication requirement of the

Administrative Procedure Act, 5 U.S.C. §553;

and (4) a violation of the constitutional

principle of separation of powers, see Kilburn

v. Thompson, 103 U.S. 168, 190 (1881).

"(T]he two-fold requirement for a

preliminary injunction is a demonstration of

probability of success on the merits and a

showing that irreparable harm will result if

such relief is denied." Gulf & Western Ind-

ustries, Inc. v. The Great Atlantic & Pacific

Tea Company, Inc., 476 F.2d 687, 692 (2d Cir.

1973).

First, plaintiffs maintain that the

differences in treatment between alien

spouses of United States citizens and alien

spouses of permanent resident aliens, and

within the latter category, between aliens

present in the country and married as of

April 10, 1973 and those who arrive or marry

after that date constitute a gross abuse of

discretion and are unlawful. The Second

Circuit has held that in the grant or refusal

of voluntary departure, the Service and the

administrator may establish groups of persons

entitled to discretionary relif so long as

the classifications are rationally related to

the statutory scheme. Buckley v. Gibney, 332

F.Supp. 790 (S.D.N.Y.), aff'd per curiam, 449

—

-23a-

F.2d 1305 (2d Cir. 1971), cert. denied, 405

U.S. 919 (1972); Fook Hong Mak v. Immigration

and Naturalization Service, 435 F.2d 728 (2d

Cir. 1970); Lam Tat Sin v. Esperdy, 334 F.2d

999 (2d Cir. 1964).

The treatment of married Western Hem-

isphere aliens for purposes of extended

voluntary departure on the basis of classif-

ication of spouse is reasonable in view of

the statutory scheme which places no immigrant

visa quota on spouses of citizens, but imposes

a numerical limitation on spouses of permanent

resident aliens. In practical terms, the

apparent difference in time required to obtain

a permanent visa substantiates the differentia-

tion. Furthermore, it is certainly within the

Service's discretion to conclude that other

considerations may at some time warrant lenient

treatment, but that to grant it in all situa-

tions would encourage aliens to enter illegally,

and acquire the status, and would open a loop-

hole in disregard of the statute.

Plaintiffs second argument is that the

two classifications in issue deny plaintiffs

the constitutional guarantee of equal protec-

tion of the laws. In Borass v. The Village

of Belle Terre, 476 F.2d 806 (2d Cir.)

rehearing en banc denied, prob. juris. noted,

42 U.S.L.W. 3226 (U.S. October 15, 1973)

(No. 191), the Second Circuit held that: "If

the classification, upon review of facts

bearing upon the foregoing relevant factors,

is shown to have a substantial relationship

to a lawful objective and is not void for

other reasons, such as overbreadth, it will

ee Eee rea

eee ANAT Re wae tie ORC (RS. ge RR aS ed fad TN al

Rai brates bo ncieaidin tore creme nie aA TTR SitS MGA

:

-24a-

be upheld." 476 F.2d at 814. Distinctions

drawn for the purpose of granting stays of

deportation have consistently passed consti-

tutional muster in this Circuit. Buckley v.

Gibney, supra, 332 F.Supp. at 795; Applica-

tion of Amoury, 307 F.Supp. 213 (S.D.N.Y.

1969) (Weinfeld, Jr.); see Faustino v. Immig-

ration and Naturalization Service, 432 F.2d

Cir.), cert. denied, 401 U.S. 921 (1971);

Mitai v. Immigration and Naturalization Ser-

vice, 343 F.2d 466 (2d Cir.), cert. denied,

302 U.S. 816 (1963); accord, Perdido v.

Immigration and Naturalization Service, 420

F.2d 1179 (5th Cir. 1969). The classifica-

tions in this case are no less substantially

related to the statutory scheme which treats

relatives of citizens differently from rela-

tives of permanent resident aliens than those

classifications based on other statutory dis-

tinctions which distinguish between the nature

of the work one performs, see Buckley v.

Gibney, supra, or the citizenship of one's

parents, see Application of Amoury, supra.

Third, plaintiffs contend that the

August 1, 1972 policy and April 10, 1973

modification are invalid since the Service

failed to publish the "rules" on thirty

days' notice in accordance with the provisions

of the Administrative Procedure Act, 5 U.S.C.

§553 (b), (dad). Under the test set forth in

Lewis-Mota v. Secretary of Labor, 469 F.2d

475 (2d Cir. 1972), whether given instructions

are to be considered a "rule" under 5 U.S.C.

§551(4) or within the exception for a "general

statement of policy" under 5 U.S.C. §553(b),

the Court must look to the "substantial impact

SREY ERE oo pe

| eae

-25a-

of the action" on the “existing rights and

obligations of the parties." 469 F.2d at 482.

In Lewis-Mota, aliens admitted to this country

with labor certifications based on a precert-

ified list of jobs in short supply found them-

selves no longer certified (after their temp-

Orary visas expired) following the Secretary

of Labor's suspension of the precertified

lists without notice. The court invalidated

the rule based on the Service's failure to

publish it on thirty days' notice. Neither

at the time the instructions were altered on

August 1, 1972, nor at the time the Service

determined to grant the benefit to those

aliens who were already in the cojntry and

married to a permanent resident alien on

April 10, 1973, were plaintiffs Noel and Petit

married to permanent resident aliens, In

fact, each may still be entitled under the

Regulations to adeferred voluntary departure

on the basis of hardship, in the discretion

of the district director, as is any deport-

able alien whether married or not. 8 C.F.R.

§§ 244.1 and 244.2 (1973).

Plaintiffs' final argument that the

Service abdicated its statutory responsib-

ility to the Chairman of the Subcommittee

on Immigration and Nationality in violation

of the constitutional principle of separation

of powers fails wide of the mark. While it

is conceded that the Chairman made certain

recommendations to the Service based on infor-

mation gathered during congressional hearings,

correspondence from the Service indicated that

to the extent followed, the changes in the

-26a-

instructions were based on the information

provided, and not agon an order from the

House Subcommittee.

Upon review of plaintiffs' arguments,

the probability of ultimate success on the

merits is not sufficiently likely to

warrant the preliminary relief requested.

Accordingly, the motion for a preliminary

injunction is denied.

So Ordered.

VsSchsu 2

Dated: New York, New York

February 6, 1974.

. - . ————

MES TEFEN RRS LIEIEI a Z ELLEN ETE PPLE FIORE EIST

-27a-

FOOTNOTES

1. The affidavits of the parties are

unclear as to what periods of time a for-

mal policy to grant deferred departure

was effective prior to 1972. It is certain,

however, that New York's District Director

routinely granted lenient treatment.

(Government's Exhibit N, Letter Regional

Commissioner, Burlington, Vermont to Dis-

trict Director, New York, June 9, 1972).

For purposes of this motion it is unnec-

ecessary to determine whether a policy of

leniency was consistently followed by dis-

trict directors prior to July 31, 1972, or

whether inconsistent policies were followed

by district directors in the exercise of

their discretion.

2. Under the amendments to the Immi-

gration and Nationality Act in 1965, Western

Hemisphere aliens are treated separately

for purposes of permanent visas from the

rest of the world, and a numerical limita-

tion is established to be filled ona first

come, first served basis. Section 101l(a)

(27) and 201(a) of the Immigration and

_ Nationality Act, 8 U.S.C. §§1101(a) (27) and

115l(a). For aliens from the Western Hem-

isphere as well as other aliens, who wish

to immigrate for the purpose of entering the

domestic labor market, the statute requires

a labor certification from the Secretary of

Labor to the effect that entry will not

adversely affect the domestic labor market.

Western Hemisphere aliens who are parents,

spouses or children of United States citi-

PETIT UAE BOAO MINE ELAS YET B SPT TATE LONE I I II re IMENT TAME RNR NE Ge

-28a-

zens or of permanent resident aliens are

excepted from this requirement. Section

212(a) (14) of the Immigration and Nation-

ality Act, 8 U.S.C. §1182(a) (14). Weather

certified or excepted from certification,

issuance of visas to Western Hemisphere

aliens is subject to the numerical limita-

tions in the statute.

3. Under proposed H.R. 9651, the two

separate quotas for Western Hemisphere

aliens and "Worldwide" aliens would be re-

placed by one overall numerical ceiling.

The visa preference presently applicable to

only Worldwide aliens, which accords alien

spouses of permanent resident aliens pre-

ference, will apply to Western Hemisphere

aliens as well. Under the proposal, imme-

diate relatives of permanent resident aliens

will be given first preference status.

4. Under proposal H.R. 982, Section 245

of the Immigration and Nationality Act, 8

U.S.C. §1255 which presently permits

aliens under prescribed conditions to ad-

just to a permanent status while in this

coun*ry will apply to Western Hemisphere

aliens. The exclusion of Western Hemisphere

aliens from this under the present

law has given rise to the problems under-

lying the issues in this case,

5. Memorandum, Associate Commissioner,

Operations to All District Directors, et al.,

July 17, 1972, Pp. i.

-29a-

Exhibit C to

Affidavit of Austin T. Fragomen, Jr.

(Retyped)

AMERICAN IMMIGRATION AND

CITIZENSHIP CONFERENCE

509 Madison Avenue * New York, N.Y. 10022

April 2, 1973

Special Bulletin No. 9

CONGRESSMAN RODINO ASKS FOR DELAY OF

ENFORCED DEPARTURE OF CERTAIN WESTERN HEMISPHERE ALIENS

As reported in AICC NEWS, Vol., XVIII, No. 4, the Immigration

and Naturalization Service at the suggestion of the House Judiciary

Subcommittee on Immigration and Nationality ceased its policy of

granting automatic deferred departure status for aliens in the pro-

fessional classes, and natives of the Western Hemisphere with close

lawful resident alien relatives in the United States. Noting that

Subcommittee No. 1 was in the process of considering new legislation

regarding the Western Hemisphere immigration situation, Rep. Rodino,

Chairman of the House Judiciary Committee, suggested to Commissioner

of Immigration and Naturalization, Raymond F. Farrell in a letter of

March 28, 1973 as follows:

Dear Mr. Commissioner:

I am sure you are aware that the Members of Subcommittee No. I of

this Committee are commencing extensive hearings on legislation de-

signed to establish a preference system for the Western Hemisphere.

My bill, H.R. 981, to amend the Immigration and Nationality Act in

that respect is under active consideration by the Subcommittee.

Knowing of their diligence and their awareness of the need for such

legislation, it is my firm belief that legislation equalizing the

two hemispheres will be favorably acted upon by the Committee during

the current session of the Congress.

With that in mind, coupled with the fact that legislation permitting

the adjustment of status of certain natives of the Western Hemisphere

has already been ordered favorably reported to the House of Represen-

tatives, I believe that you should consider issuing instructions to

your Field Offices to delay enforcing departure of natives of the

Western Hemisphere who are immediate relatives as defined in section

201(b) of the Immigration and Nationality Act; the unmarried sons or

daughters of United States citizens; and the spouse or anmarried son

or daughter of an alien who has been lawfully admitted to the United

States for permanent residence.

me

a TAR ERE MAED APY TEL RELY Bae IN OSE SIRES LN TI CN LOI IIT OE BS FL ENE LB INY IG oS, TRIALS

-30a-

I feel certain that you will agree that this course of action will

alleviate much hardship and that the interest of humanity will be

| better served. The uniting of families has been paramount in all

consideration of legislation in the field of immigration.

Kindest regards.

Sincerely,

(signed) PETER W. RODINO, JR.

Chairman