The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs filed this proposed class action against the
United States Immigration and Naturalization Service (INS) and
certain of its officials seeking declaratory, injunctive and
mandatory relief for alleged violations of plaintiffs'
constitutional and statutory rights. Currently pending are
defendants' motion to dismiss the complaint in its entirety,
or in the alternative, to dismiss the INS and certain of its
officials, defendants' motion for a protective order and
plaintiffs' motion for class certification.
In this lawsuit, plaintiffs challenge delays between the
filing of an initial naturalization application and the
scheduling of a preliminary investigation and examination.
Plaintiffs claim that these delays violate the Immigration and
Nationality Act, 8 U.S.C. § 1101 et seq., and the regulations
promulgated thereunder; the Administrative Procedure Act,
5 U.S.C. § 551 et seq.; Article 1, Section 8, Clause 4, of the
United States Constitution; the Due Process Clause of the Fifth
Amendment of the Constitution and the Equal Protection Clause
of the Fourteenth Amendment of the Constitution. Plaintiffs
seek injunctive relief to correct defendants' alleged illegal
policy. Specifically, they seek an order that would give them
and their alleged fellow class members prompt preliminary
investigations and examinations of their naturalization
applications; and an order enjoining the expulsion of certain
other plaintiffs, who, allegedly, would be entitled to remain
in the United States but for these delays in processing.
Initially, defendants challenge the standing of plaintiffs
to attack the policies and practices of the INS. For purposes
of the standing issue, it is important to distinguish between
the two proposed classes. The claims of two of the plaintiffs
may be taken as typical of the claims of the remaining
plaintiffs. The complaint alleges that plaintiff Maria Luisa
Blancas was admitted to this country as a lawful permanent
resident on August 14, 1974. The complaint further alleges
that plaintiff Jorge Blancas-Garcia, Luisa Blancas' husband,
has been residing in this country since 1978. It is not
alleged, however, that plaintiff Jorge Blancas-Garcia lawfully
entered this country or that he is currently in this country
lawfully. The complaint also alleges that these two plaintiffs
have a child who is a citizen of this country by virtue of his
birth in the State of Illinois on October 25, 1978.
Plaintiff Maria Luisa Blancas complains that she filed an
application to file a Petition for Naturalization on September
25, 1979, and that, as a result of delays in processing that
application, more than 14 months will have passed subsequent
to her filing, before she is scheduled for her preliminary,
investigation and examination. As a result of this delay, she
claims that she is being denied the many benefits of
citizenship in this country, including the right to vote and
the right to qualify her husband to apply to immigrate to this
country as an immediate relative of a citizen. Immigration
applicants who are related to a citizen of the United States
are exempt from the numerical limitations on immigration under
8 U.S.C. § 1151(b).
Plaintiffs also allege that the INS initiated formal
deportation proceedings against plaintiff Jorge
Blancas-Garcia; that on September 26, 1978, plaintiff Jorge
Blancas-Garcia was ordered by an immigration judge to depart
this country voluntarily; and that, if he failed to leave
voluntarily, he would be deported. Plaintiff Jorge
Blancas-Garcia has applied for extensions for his voluntary
departure based on the fact that he would be separated from
his family and that he would lose his job upon expulsion and
his family would be forced to apply for public assistance.
Under these pleadings, Maria Luisa Blancas would belong to the
first proposed class, while Jorge Blancas-Garcia would belong
to the second proposed class.
The court will consider the standing of the class 2
plaintiffs first. In essence, class 2 is asserting that but
for the delays in processing the applications regarding class
1, they (the members of class 2) would be entitled to stay in
this country under 8 U.S.C. § 1151(b). Thus, the question
presented is whether the class 2 members have standing to
challenge the delays in processing the applications of class 1
At the outset the court must note that plaintiffs have
failed to allege that they entered this country lawfully or
that they are currently in this country lawfully. As well,
they have alleged that they are subject to deportation
proceedings. This is strong evidence that these plaintiffs are
in this country illegally. If they are, there can be no doubt
that they are subject to deportation under the Act. Moreover,
plaintiffs can only appeal a deportation order to the Court of
Appeals and not the district court. 8 U.S.C. § 1105a; Foti v.
Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct.
306, 11 L.Ed.2d 281 (1963). Thus, it is clear that if
plaintiffs are here illegally, they are subject to deportation
and this court lacks jurisdiction to hear their challenge to
the deportation decisions. 8 U.S.C. § 1105a.
Arguably, however, the class 2 plaintiffs mean to assert
that their presence in this country would be permissible but
for the allegedly unlawful delays, and, thus, that these
delays infringe some sort of an entitlement to continued
residence. Even, however, if plaintiffs are alleging that they
are here legally in this sense, they still lack standing to
pursue their claim.*fn1 The Supreme Court has announced the
basic principles which determine whether a party has standing:
"Whether a party has a sufficient stake in an
otherwise justiciable controversy to obtain
judicial resolution of that controversy is what
has traditionally been referred to as the
question of standing to sue . . . [T]he question
of standing depends upon whether the party has
alleged such a `personal stake in the outcome of
the controversy,' . . . as to ensure that `the
dispute sought to be adjudicated will be
presented in an adversary context and in a form
historically capable of judicial resolution."
Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S.Ct. 1361,
1364, 31 L.Ed.2d 636 (1972). The Court went on to note that
"the `injury in fact' test requires more than an injury to a
cognizable interest. It requires that the party seeking review
be himself among [those] injured [by the challenged conduct]."
Sierra Club, 405 U.S. at 735, 92 S.Ct. at 1366. Thus, at a
minimum, to have standing a party must show that he will be
affected by the outcome of the litigation.
In the instant case, plaintiffs cannot make such a showing
8 U.S.C. § 1151(b) provides that immediate relatives of United
States citizens shall be exempt from the numerical immigration
limitations. Thus, plaintiffs argue if class 1 plaintiffs'
applications were processed, they would be able to stay in this
country. As a matter of law, this assertion is incorrect.
Section 1151(b) "does not authorize automatic admission of
immediate relatives, but merely exempts them from the numerical
limitations." Menezes v. Immigration and Naturalization
Service, 601 F.2d 1028, 1032 (9th Cir. 1979). As the Seventh
Circuit has held, even a valid marriage to a United States
citizen does not of itself exempt an alien from deportation.
DeFigueroa v. Immigration and Naturalization Service,
501 F.2d 191 (7th Cir. 1974). See, Swartz v. Rogers, 254 F.2d 338 (D.C.
Cir. 1958). Since, even if the alleged delays were eliminated,
and the class 1 plaintiffs were ...