United States District Court, Northern District of Illinois, E.D
June 23, 1983
REINHOLD KULLE, PLAINTIFF,
THE HONORABLE OLGA SPRINGER, IMMIGRATION JUDGE, DEFENDANT.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Reinhold Kulle ("Kulle") seeks a writ of mandamus
to force Immigration Judge Olga Springer to allow discovery in
his deportation hearing. Pursuant to 8 C.F.R. § 242.16,*fn1
the Immigration Judge denied Kulle's motion to compel discovery
upon the United States.
The United States has moved to dismiss Kulle's complaint;
and Kulle's hearing has been stayed until July 19, 1983,
pending a resolution before this Court. Since this Court lacks
subject matter jurisdiction to consider Kulle's request for
relief, the United States' motion to dismiss is granted.
28 U.S.C. § 1361 confers upon a district court jurisdiction
of actions to compel an officer of the United States to perform
a duty owed to a plaintiff.*fn2 We believe, however, that this
jurisdiction is limited in deportation actions by Section
106(a) of the Immigration and Naturalization Act of 1952,
8 U.S.C. § 1105a(a),*fn3 which confers exclusive jurisdiction
upon the Courts of Appeals to review final orders of
deportation made against aliens pursuant to Section 242(b) of
the Act, 8 U.S.C. § 1252(b).*fn4
The Supreme Court has delineated the scope of Section 106(a)
as it relates to deportation actions. An analysis of three of
its cases makes it clear that the review of discovery orders
in 242(b) proceedings comes within the purview of this
section. In Foti v. Immigration and Naturalization Service,
375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), the Supreme
Court held that:
[A]ll determinations made during and incident to
the administrative proceeding conducted by a
special inquiry officer [Immigration Judge], and
reviewable together by the Board of Immigration
Appeals . . . are . . . within the ambit of the
exclusive jurisdiction of the Courts of Appeals.
Id. at 229, 84 S.Ct. at 314. Foti specifically involved an
expansion of "final orders of deportation" to include the
denials of suspensions of deportation. In a short per curiam
opinion, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13
L.Ed.2d 90 (1964), the Supreme Court enlarged the scope of
"final orders of deportation" to include the denials of motions
to reopen deportation hearings.
In Chen Fan Kwok v. Immigration and Naturalization Service,
392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968), though the
Court held that denials of stays of deportation made by a
District Director of the Immigration and Naturalization Service
were not "final orders of deportation," the Court made clear
that the expansive interpretation of Section 106(a) as set
forth in Foti continued to hold. The Court reiterated that
Section 106(a) embraces:
. . those determinations made during a
proceeding conducted under Section 242(b),
including those determinations made incident to a
motion to reopen such proceedings.
Id. at 216, 88 S.Ct. 1976. See also Gornicka v. Immigration and
Naturalization Service, 681 F.2d 501
(7th Cir. 1982).
The foregoing cases establish that determinations involving
discovery in deportation proceedings fall within the scope of
Section 106(a) and thus within the exclusive jurisdiction of
the Courts of Appeals. The phrase "during and incident to"
includes discovery orders, for such orders are made "during"
a Section 242(b) proceeding; to conclude the opposite would be
to ignore the very meaning of the phrase. Furthermore, the
Congressional intent in enacting Section 106(a) was "to
prevent delays in the deportation process." Foti, 375 U.S. at
236, 84 S.Ct. at 315. Thus, Congressional intent would be
thwarted if this Court assumed jurisdiction of the instant
Accordingly, the petition is dismissed for lack of subject
matter jurisdiction. It is so ordered.