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BUENO v. I.N.S.

April 13, 1983

JOSEFINA BUENO, PLAINTIFF,
v.
IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff, Josefina Bueno ("Bueno"), a Mexican national who has been present in the United States illegally for the last eight years, brought this action against the defendant, the United States Immigration and Naturalization Service ("INS"), seeking to require the INS to reverse its earlier decision and grant her a stay of deportation. The defendant has moved to dismiss, or, in the alternative, for summary judgment. Plaintiff has also moved for summary judgment. In issue is whether INS abused its discretion in denying Bueno's request for a stay or deportation.

I. Factual Background.

Plaintiff Bueno entered the United States from Mexico without inspection in January 1975. In June of 1979, following arrest and a deportation hearing, Bueno was granted the opportunity to depart voluntarily by September 25, 1979, in lieu of being deported. Plaintiff unsuccessfully appealed this order, and received an extension of her voluntary departure date from the District Director of INS until January 31, 1981. When Bueno failed to depart on that date, a warrant of deportation was issued by an Immigration Judge, ordering her to report for deportation on December 7, 1982. At the request of Bueno's attorney, the deportation date was further extended to December 10, 1982. On December 7, 1982, Bueno applied to the District Director for a stay of deportation, pursuant to 8 C.F.R. § 243.4, until a motion by Bueno to reopen her deportation case could be adjudicated. Bueno's application cited the medical requirements of her daughter, Josefina Veronica, born in the United States in 1978, and the pending application for citizenship of her son, Jose, a legal resident married to a U.S. citizen and the father of three U.S. citizen children. The District Director denied the application for a stay on December 10, 1982, and, on that date, Bueno again failed to report for deportation. The same day Bueno moved to reopen her deportation proceedings and moved for a Suspension of Deportation pursuant to Section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254 ("Section 1254"). On January 26, 1983, an Immigration Judge denied the motion to reopen and refused to rule on the motion for a suspension. Plaintiff has appealed that decision to the Board of Immigration Appeals. The present action was filed on December 15, 1982.

II. Questions of Law.

Plaintiff has three requests of this court: (1) that it reverse the District Director's denial of a stay of deportation as an abuse of the Director's discretion, (2) that it order the adjudication of Bueno's motion to reopen the deportation hearing, and (3) that it grant the citizenship application of her son, Jose, or, at least order expedited consideration of that application.

The last two requests are quickly disposed of. The request that this court order the adjudication of the motion to reopen has been mooted by the adverse adjudication of that motion since the commencement of this action. Plaintiff Bueno clearly lacks standing to make the third request. The Constitution requires that, to invoke the jurisdiction of this court, a prospective litigant must allege "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 viewed as capable of judicial resolution.'" Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). Bueno lacks such a personal stake in her son's citizenship application; even if he were to become a citizen tomorrow, that would not entitle Bueno to become a citizen herself or even to remain in this country. 8 U.S.C. § 1151(b) provides that "otherwise qualified" immediate relatives of United States citizens shall be exempt from the numerical immigration limitations, but it is well established that 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); Cornejo v. Landon, 524 F. Supp. 118, 121 (N.D.Ill. 1981). In Cornejo, this court found that, since one group of plaintiffs "would not necessarily be affected by the outcome" of their immediate relatives' naturalization proceedings, "they have no personal stake in the outcome of the controversy sufficient to establish standing under the Sierra Club test." Cornejo, 524 F. Supp. at 121. The same is true here.

This court does have jurisdiction to review the District Director's denial of a stay of deportation, Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), but the standard of review is an extremely narrow one. The stay of deportation regulation provides, in relevant part:

  "The district director, in his discretion, may
  grant a stay of deportation for such time and
  under such conditions as he may deem
  appropriate. . . . Denial by the district director
  of a request for a stay is not appealable [to an
  Immigration Judge or the Board of Immigration
  Appeals] . . ."

8 C.F.R. § 243.4. With this express vesting of discretion in the district director, it is well settled that stays of deportation "are matters of grace and not of right and will not be set aside by the courts, absent a clear showing of abuse of discretion." Kladis v. Immigration and Naturalization Service, 343 F.2d 513, 515 (7th Cir. 1965).

The District Director's written denial of the stay indicates that he considered both of Bueno's hardship contentions. He rejected her argument based on her son's eligibility for citizenship on the basis that it rested on conjecture — i.e., if the son becomes naturalized, Bueno might then have her legal status adjusted — and that INS had to deal with the facts as they then stood. The District Director found insufficient support for the medical necessity argument because "you have failed to establish that treatment for [the daughter] is not available in your native country." Administrative File at 40.

Having found that the District Director did consider the evidence and arguments proffered by the plaintiff, and rejected them, this court can only find an abuse of discretion, according to the very authority cited by the plaintiff, if the decision was

  ". . . made without a rational explanation,
  inexplicably departed from established policies,
  or rested on an impermissible basis such as an
  invidious ...

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