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March 31, 1981


The opinion of the court was delivered by: Decker, District Judge.


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.

Plaintiffs argue that this action should be maintained as a class action. The first proposed class (class 1) would consist of lawful permanent residents who have applied for naturalization but who have not been scheduled for preliminary examinations due to various delays. The second proposed class would consist of spouses, parents, children and siblings of the members of the first class who are waiting to qualify to apply for lawful permanent status pending the naturalization of class one.

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 Standing Questions

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 members.

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 ...

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