523 F. Supp. 1029 | N.D. Ill. | 1981
MEMORANDUM OPINION AND ORDER
Plaintiff Stefan Lukaszuk (“Lukaszuk”) brought this action against Secretary of State Alexander M. Haig, Jr. (“the Secretary”) in order to challenge regulations promulgated by the Secretary that set forth procedures by which a non-immigrant alien temporarily resident in the United States may secure an adjustment of his or her status to that of a permanent resident. See generally, 8 U.S.C. § 1255; 22 C.F.R. §§ 42.110 and 42.110-2.2 et seq. Lukaszuk claims that the regulations and the manner in which the Secretary has implemented them deprive him of due process of law in violation of the Fifth Amendment to the United States Constitution. Jurisdiction is premised upon 28 U.S.C. §§ 1331, 1332, and 8 U.S.C. § 1329.
This matter is presently before the Court on the Secretary’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. In this context, Lukaszuk is entitled to every reasonable inference that may be drawn from the evidence in his favor and the
The essential facts are not disputed.. Lukaszuk came to this country from his native Poland on September 3, 1974, as a non-immigrant alien visitor. He subsequently secured employment here as a workman with the Chicago Vacuum Casting Corporation. His employer petitioned for and received a labor certification on Lukaszuk’s behalf from the Secretary of Labor on January 4, 1977, pursuant to 8 U.S.C. § 1182(a)(14). Its petition to secure sixth preference status for Lukaszuk was approved by the Immigration and Naturalization Service (“INS”) on October 28, 1977.
An alien who is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255(c) generally must return to his or her country of origin in order to apply for a visa entitling him or her to permanent residency status in the United States. 22 C.F.R. § 42.110 (1980). However, if the alien is a refugee, an immediate relative (spouse, child under the age of 21, or parent) of an American citizen, or is entitled to first or second preference status,
Lukaszuk, who has been accorded sixth preference status and is thereby ineligible for stateside criteria processing pursuant to 22 C.F.R. § 42.110-2.22(c), has been refused discretionary processing by at least two American consuls in Canada because of the
Lukaszuk contends that the regulations relating to stateside criteria processing are unconstitutional on both due process and equal protection grounds
As a threshold matter, the Secretary contends that the exercise of federal jurisdiction would be premature in the instant case because Lukaszuk has not exhausted the administrative remedies available to challenge the finding that he is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255. The Secretary also maintains that there is no case or controversy at the present time since Lukaszuk has not been aggrieved by agency action either by the issuance of a final deportation order or the denial of asylum. However, Lukaszuk concedes for the purposes of this case that he is statutorily ineligible for adjustment of status under 8 U.S.C. § 1255(c) so that it would be fruitless for him to avail himself of the administrative remedies afforded for the purpose of challenging that finding at this time. In such circumstances, there is no requirement that he exhaust his administrative remedies before invoking the jurisdiction of this Court. Continental Can Company v. Marshall, 603 F.2d 590, 597 (7th Cir. 1979). In the Court’s view, there is a line dispute between the parties at this time with respect to the validity of the stateside criteria processing regulations, and Lukaszuk has a sufficient stake in the outcome of the controversy to challenge the regulations as applied to persons in his position. He need not wait until he is finally deported or denied asylum in order to litigate the constitutionality of the Secretary’s regulations.
The Supreme Court has long recognized the limited scope of judicial inquiry in matters involving Congressional or Executive action in the immigration area. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Mathews v. Diaz, 426 U.S. 67, 77-84, 96 S.Ct. 1883, 1890-93, 48 L.Ed.2d 478 (1976); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). As the Supreme Court stated in Kleindienst v. Mandel, supra:
The power of Congress to exclude aliens altogether from the United States, or to*1033 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.
408 U.S. at 766, 92 S.Ct. at 2583. Courts have been particularly reluctant to interfere in the visa-issuing process as an area uniquely within the discretion of the Secretary or the Attorney General. Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1181 (2d Cir. 1978); Gomez v. Kissinger, 534 F.2d 518, 519 (2d Cir. 1976). Although Congress and the Executive departments do not act with carte blanc in this area, the Supreme Court has recognized that they “regularly make[ ] rules that would be unacceptable if applied to citizens,” Mathews v. Diaz, supra, 426 U.S. at 80, 96 S.Ct. 1891, as an indication of the scope of their powers in the context of the immigration and naturalization laws.
In this context, the Court cannot say that the stateside criteria processing regulations promulgated by the Secretary are either so arbitrary or so invidiously discriminatory between classes of aliens as to offend principles of due process or equal protection embodied in the fifth amendment. The stateside criteria processing regulations arise out of an informal arrangement between the United States and Canada whereby aliens may enter Canada for the limited purpose of presenting an application for an immigrant visa at an American consulate in that country. See generally, 2 Gordon and Eosenfield, Immigration Law and Procedure § 7.3(b) (1979).
The Supreme Court has noted that the process of drawing lines to determine eligibility for particular benefits “inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims.” Mathews v. Diaz, 426 U.S. 67, 83-84, 96 S.Ct. 1883, 1893, 48 L.Ed.2d 478 (1976). The Court cannot say that the lines drawn with respect to the stateside criteria processing program offend principles of due process or equal protection guaranteed to aliens as well as to citizens under the fifth amendment.
. Sixth preference status indicates that the alien is “capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.” 8 U.S.C. § 1153(a)(6). Classification in one of the six categories of preference listed in 8 U.S.C. § 1153(a) is an initial step in the process by which aliens may become eligible for an immigration visa or adjustment to permanent residency status. Preferred status, however, does not in any way guarantee that the alien will not be deported or that he will ultimately be issued an immigration visa.
. Lukaszuk does not dispute the determination that he had accepted and maintained employment prior to filing his petition for adjustment of his status to permanent residency.
. This provision relating to unauthorized employment was added by the 1976 amendments to the Act and it became effective on January 1, 1977.
. First preference aliens are unmarried sons and daughters of United States citizens. Second preference aliens are unmarried sons and daughters of aliens lawfully admitted for permanent residence status. 8 U.S.C. § 1153(a)(1) and (a)(2).
. Lukaszuk maintains that a question exists as to whether he would be allowed to immigrate to this country from Poland if the American consul in Poland approved his application for permanent residence and a visa number is issued to him thus precluding entry of summary judgment at this juncture. As evidenced by the discussion in the text hereafter, however, this fact is irrelevant to the issue of the constitutionality of the stateside criteria processing regulations.
. There is no dispute that the fifth amendment as well as the fourteenth amendment protects all aliens, whether in this country lawfully or unlawfully, from deprivation of life, liberty or property without due process of law. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51, 70 S.Ct. 445, 453-55, 94 L.Ed.2d 616 (1950).
. We do note, however, that an order to show cause why Lukaszuk should not be deported was issued on March 17, 1980, and his application for asylum was deemed abandoned on October 29, 1980.
. Gordon and Rosenfield also note that American consulates in Mexico or other nearby countries may be willing to process an application for an immigrant visa of an alien in the United States provided that their workload allows this flexibility. They recommend that an interested person in the United States should direct an inquiry to the appropriate American consul in a nearby country. See Gordon and Rosenfield, Immigration Law and Procedure § 7.3b at 7-39-7-40 (1979).
. The Seventh Circuit has consistently held that mandamus will not lie to compel the performance of a clearly discretionary act. See Save the Dunes Council v. Alexander, 584 F.2d 158, 162 (7th Cir. 1978) and cases cited therein.