United States District Court, Northern District of Illinois, E.D
April 13, 1983
JOSEFINA BUENO, PLAINTIFF,
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
"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).
Bueno based her application for a stay of deportation under
8 C.F.R. § 243.4 on her alleged eligibility for a Suspension of
Deportation under 8 U.S.C. § 1254(a)(1). Among the
qualifications for Suspension of Deportation under Section
1254(a)(1) is that the applicant be "a person whose deportation
would, in the opinion of the Attorney General, result in
extreme hardship to the alien or to his spouse, parent, or
child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence
. . ." In her application for a stay of deportation, Bueno
averred that (1) her minor daughter, Josefina Victoria, an
American citizen, currently receives intensive and continuous
medical treatment for a serious gastric illness, which
treatment would not be available to her, or would, at least,
be unaffordable to her, in the area of Mexico to which they
would return, and (2) that her son, Jose, an applicant for
citizenship, and his three U.S. citizen children will remain
in the United States pending disposition of his application,
thus causing a difficult family separation if Bueno is
deported. Bueno contends that both taking her ill daughter
back to Mexico and separating from her son and, thus, being
prevented from remaining in the United States to adjust her
immigration status if his citizenship application is
successful, constitute "extreme hardships" justifying a stay
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 discrimination against a particular
race or group."
Wong Wing Hang v. Immigration and Naturalization Service,
360 F.2d 715, 719 (2d Cir. 1966). Plaintiff has not even alleged
that the decision of the District Director was irrational or
based on invidious discrimination. Further, it appears that
plaintiff's quarrel is not with the District Director's
departure from established policies, of which there is no
evidence, but rather with the established policies themselves.
The requirement that a claim of extreme medical hardship be
established by firm evidence that necessary medical care is
unavailable (at any price) in the country (not the region) to
which the alien is being deported is well established at INS.
It is not this court's province to reject that requirement as
too harsh. When the Court of Appeals for the Ninth Circuit
recently reversed an INS Suspension of Deportation denial as
based on too severe a construction of "extreme hardship," the
Supreme Court firmly rebuked that court:
"[M]ore fundamentally, the Court of Appeals
improvidently encroached on the authority which
the Act confers on the Attorney General and his
delegates. The crucial question in this case is
what constitutes `extreme hardship.' These words
are not self-explanatory, and reasonable men
could easily differ as to their construction. But
the Act commits their definition in the first
instance to the Attorney General and his
delegates, and their construction and application
of this standard should not be overturned by a
reviewing court simply because it may prefer
another interpretation of the statute.
". . . [T]he Court of Appeals extended its `writ
beyond its proper scope and deprived the Attorney
General of a substantial portion of the
discretion which § 244(a) vests in him.' . . .
"The Attorney General and his delegates have
the authority to construe `extreme hardship'
narrowly should they deem it wise to do so. Such
a narrow interpretation is consistent with the
`extreme hardship' language, which itself
indicates the exceptional nature of the
Immigration and Naturalization Service v. Wang, 450 U.S. 139
144-45, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981).
This rationale is clearly applicable and binding on this
court as applied to a decision (on a stay of deportation)
which is left, by law, entirely to the discretion of the
Just as the District Director's finding of insufficient
evidence of medical necessity may be harsh but is,
nevertheless, within his province, so is his rejection of
Bueno's hardship argument based on her son's citizenship
application. It is a well established policy — and not an
irrational one — that "pending applications for immigration
status do not entitle an alien to a suspension or termination
of deportation." Cachu v. Immigration and Naturalization
Service, 568 F.2d 625, 628 (9th Cir. 1977). The District
Director's application of that policy to deny a stay of
deportation based on the pending application of the plaintiff's
30-year old married son did not constitute an abuse of his
For the reasons stated above, defendant's motion for summary
judgment is granted, plaintiff's motion for summary judgment
is denied, and this cause is ordered dismissed.
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