United States District Court, Northern District of Illinois, E.D
October 10, 1972
TOMAS ADAME, PLAINTIFF,
IMMIGRATION & NATURALIZATION SERVICE, DEFENDANT.
The opinion of the court was delivered by: Decker, District Judge.
Plaintiff, Tomas Adame, has filed a complaint against the
Immigration and Naturalization Service (the Service) asking for
a declaratory judgment and injunction relief that would allegedly
enable him to continue prosecution of a divorce action presently
pending in the Circuit Court of Cook County, Illinois, and to
prevent the Service from carrying out its order of deportation.
The Service has moved to dismiss the complaint, or, in the
alternative, for summary judgment. The sole question presented by
the complaint is whether the District Director of the Service
abused his discretion in failing to grant plaintiff an indefinite
extension of his date of voluntary departure pending the
termination of his divorce action in the Illinois court. Since
the case has been considered on the basis of the entire Service
file, the motion will be treated as a motion for summary
Plaintiff entered the United States illegally on or about July
6, 1969. He has admitted that he was deported from the United
States in April, 1969, under the name Raul Calsada Ramierez.
Since the plaintiff had again entered this country without
inspection, an Order to Show Cause and Notice of Hearing for
Deportation was issued on March 23, 1972. See,
8 U.S.C. § 1251(a)(2), 1252(a), (b). Although originally released on $1,500
bond on March 23, 1972, the bond was reduced to $1,000 the next
day when plaintiff represented to a hearing officer that he was
married to an American citizen. He subsequently denied ever
having stated that he actually lived with his alleged spouse.
A deportation hearing before a special inquiry officer was held
on April 3, 1972. Plaintiff was represented by counsel who
admitted the deportability of the plaintiff and requested the
privilege of voluntary departure be granted. Voluntary departure
was granted until May 17, 1972, and plaintiff agreed to accept
the decision as final. Notwithstanding, plaintiff failed to
depart and a warrant of deportation was issued on May 18, 1972.
A petition by plaintiff's alleged spouse that plaintiff be
granted an immigrant's visa under 8 U.S.C. § 1151 was denied on
June 16, 1972, because the petitioner had already denied under
oath that she was or ever had been married to the plaintiff. An
extension of the voluntary departure date to July 19, 1972, was
then granted by the District Director. On July 17, 1972,
plaintiff requested an extension of his departure date until his
Illinois divorce litigation had been concluded. The matter was
allegedly set for hearing on August 16, 1972. This action was
filed on July 19.
Although there is a serious question as to whether this court
has jurisdiction to review the actions of the District Director
in this case, Randazzo v. Esperdy, 334 F. Supp. 1083 (S.D.N Y
1970); Kelch v. Kennedy, 209 F. Supp. 416 (D.Md. 1962);
8 C.F.R. § 244.2, it is at least clear that the scope of review is very
narrow. Fernandez-Gonzalez v. Immigration and Naturalization
Service, 347 F.2d 737 (7th Cir. 1965). Only in the case of a
clear showing of abuse of discretion can this court upset the
decision of the District Director. Kladis v. Immigration and
Naturalization Service, 343 F.2d 513 (7th Cir. 1965). No such
showing has been made in the present case.
Plaintiff has admitted deportability and agreed to a voluntary
departure in May. He ignored that date and attempted to get
relief as the spouse of a person (a U.S. citizen) who had on more
than one occasion denied under oath that she was ever married to
him. After being granted a two-month extension of the original
voluntary departure date, he again attempted to avoid deportation
by claiming the necessity of remaining here to pursue a divorce
action against his alleged wife. When the foregoing is considered
by itself or in the light of plaintiff's prior record as an
immigration law violator, it is clear that the District Director
did not abuse his discretion in failing to grant a further
extension of plaintiff's voluntary departure. Even if it has been
the "usual policy", as plaintiff asserts, for the Service to
grant extensions of voluntary departure dates for the purpose of
concluding pending litigation, that policy can be changed or
discretionarily applied so as to avoid dilatory tactics and
delays in contravention of the general policies of the
immigration laws. Fan Wan Keung et al. v. Immigration and
Naturalization Service, 434 F.2d 301, 306 (2d Cir. 1970).
Accordingly, the Service's motion for summary judgment will be
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