212 F. Supp. 874 | S.D.N.Y. | 1963
The District Director moves for summary judgment in this action brought by plaintiffs, husband and wife, to review the Attorney General’s order denying to the husband ‘ nonquota immigrant” status which was sought on the basis of the wife’s citizenship.
The husband entered the United States in 1956 as a seaman, overstayed his leave and, upon appropriate proceedings, was found deportable, but was granted the privilege of voluntary departure. Within two weeks thereafter, and before leaving our shores, he married an American citizen. He then left for Greece where, as the husband of an American citizen, he was granted a nonquota visa, based on the wife’s petition.
In June, 1957 he re-entered the United States on that visa. Two months later the marriage was dissolved pursuant to a Mexican divorce decree. Thereafter, the Attorney General commenced a deportation proceeding wherein it was charged and found that the marriage was a sham and had been entered into for the sole purpose of enabling the husband to reenter the United States as the spouse of an American citizen and that his non-quota status and re-entry had been effected through such fraudulent means.
The 1961 amendment provides: “Notwithstanding the provisions of this subsection, no petition shall be approved if the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws—
“(1) a nonquota status under section 1101(a) (27) (A) of this title as the spouse of a citizen of the United States, * *5
The plaintiffs contend that the Attorney General’s denial of relief as a matter of law, and not in the exercise of discretion, is an erroneous construction of the amendment. Of course, if the Attorney General does have discretionary power to grant relief, but fails to exercise his discretion, this would constitute arbitrary conduct.
The situation here presented comes directly within the ban of the amendment. The alien’s first marriage was found to be sham, to have been entered into for the purpose of evading the immigration laws; the nonquota status was accorded to him on the basis of that fraudulent marriage.
The purpose of the amendment was to put a stop to the very type of conduct here engaged in by the alien. Congress was concerned with the “increasing number of fraudulent acquisitions of non-quota status through sham marriages between aliens and U. S. citizens.”
Without the amendment, the Attorney General had ample authority under the existing law to challenge an existing marriage which was the basis of a current petition - for nonquota status, since the
The plaintiffs make the further contention that if the Attorney General is correct in his interpretation of the amendment, it offends the constitutional prohibition of the Eighth Amendment against cruel and unusual punishment. Here it is argued that to force the husband to leave the country will deprive the wife, a native born American citizen, of his support and society and the yet unborn child of its father. The power of Congress to decide the conditions under which the aliens may enter and remain in the United States is beyond challenge.
Undoubtedly her problem is a difficult one, but her personal plight, even though she be innocent of wrongful conduct, creates no constitutional barrier to the statute. Cases which upon their individual facts were far more appealing than those here presented were found without constitutional infirmity.
Defendant’s motion for summary judgment is granted.
. 66 Stat. 166 (1952), 8 U.S.C. § 1101 (a) (27) (A) (1958).
. 66 Stat. 204 (1952), 8 U.S.C. §§ 1251(a) (2) and (c).
. 66 Stat. 180 (1952), as amended, 75 Stat. 650 (1961), 8 U.S.C. § 1155(c) (Supp. III, 1959-61).
. Ibid.
. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954).
. House of Representatives, Committee on the Judiciary, Report, H.R. No. 1086, 87th Cong., 1st Sess. (1901). Reprinted in U.S.Code & Admin.News pp. 2950, 2980 (1961).
. Compare 66 Stat. 180 (1952), 8 U.S.C. § 1155(c) (1958) with 75 Stat. 650 (1961), 8 U.S.C. § 1155(c) (Supp. III, 1959-61).
. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L. Ed. 956 (1953); Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952); The Chinese Exclusion Case, Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889).
. E. g., 66 Stat. 214 (1952), as amended, 8 U.S.C. § 1254 (1958) and 8 U.S.C.A. § 1254 (1962 Cum.Supp.).
. Cf. Swartz v. Rogers, 103 U.S.App.D.C. 1, 254 E.2d 338, cert, denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1372 (1958).
. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L. Ed. 956 (1953); United States ex rel. Knauffi v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950).