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CRUZ v. INS

January 4, 1995

KAREN CRUZ, Plaintiff,
v.
The IMMIGRATION and NATURALIZATION SERVICE, and A.D. MOYER, as District Director of the Chicago District of the Immigration and Naturalization Service, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Karen Cruz ("Karen") brings this action against the Immigration and Naturalization Service ("INS") and its Chicago District Director A.D. Moyer ("Moyer"), contending that their denial of her application for an adjustment of status under Section 245 of the Immigration and Naturalization Act (the "Act"), 8 U.S.C. § 1255(a), *fn1" constituted an abuse of discretion and a violation of her rights under the Due Process and Equal Protection Clauses. Here is Section 1255(a) in its entirety:

 
The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

 Karen seeks both a declaratory judgment and an injunction prohibiting defendants from initiating deportation proceedings against her. Defendants have moved alternatively (1) under Fed. R. Civ. P. ("Rule") 12(b)(6) to dismiss the Complaint for failure to state a claim or (2) under Rule 56 for summary judgment, while Karen has filed a cross-motion for summary judgment. For the reasons stated in this memorandum opinion and order, this Court sua sponte dismisses this action under Rule 12(h)(3) for lack of subject matter jurisdiction, thus rendering both of defendants' motions and Karen's cross-motion moot. *fn2"

 On April 1, 1965 Karen was born to Sonia ("Sonia") and David ("David") Cruz (collectively the "Cruzes") in Manila, Philippines (A.R.3). Sonia and David emigrated to the United States during the late 1960's (A.R. 18, 40), leaving their daughter Karen and a son Lawrence behind in the Philippines (A.R.19). On June 8, 1972 the Cruzes divorced (A.R.1), and Sonia later changed her last name to Yballe (A.R.23). On November 14, 1973 Sonia received her certificate of naturalization from the District Court in St. Paul, Minnesota (A.R.22). Sonia currently resides and practices medicine in Chicago (A.R. 18-19), while David lives somewhere in Minnesota (A.R.5).

 On November 21, 1990 Sonia filed on Karen's behalf a Form I-130 visa petition with the American Consul in Manila (A.R.1-2). That petition placed Karen in one of the several categories of immigrant applicants accorded preferential treatment under the Act: in this instance the unmarried adult sons or daughters of United States citizens (Act § 1153(a)(1)). Each year up to 23,400 applicants in that category (plus the number of any unused visas under Act § 1153(a)(4)) are awarded immigrant visas (Act § 1153(a)(1)). Such a visa entitles the holder to lawful permanent residency (Act § 1101(20)), and with five years' good behavior he or she can usually expect to become a United States citizen (Act § 1427(a)).

 Karen's problems stem from the fact that she is of Filipino origin, as a result of which she bumps up against an annual per-country limitation of approximately 25,620 for family-sponsored and employment-based immigrants (Act § 1152(a)(2); 2 Charles Gordon & Stanley Mailman, Immigration Law & Procedure ("Gordon & Mailman") § 31.02[3][a], at 31-11 & n.36 (1993)). Without question the Philippines is the least desirable country of origin from an applicant's point of view, as its wait lists are long even for persons who like Karen are afforded preferential status. As of December 1993 United States citizens' unmarried adult sons and daughters hailing from the Philippines needed a priority date of August 14, 1985 or earlier to receive an immigrant visa (1 Gordon & Mailman § 1.03[2][e], at 1-27). With limited exceptions an applicant's priority date is the day upon which his or her Form I-130 was filed (Reg. § 42.53), and in Karen's case that was November 21, 1990 (A.R.4). By contrast, sons and daughters from Mexico (the second-worst country of origin) faced a November 1, 1992 cut-off, while visas for sons and daughters from all other countries were immediately available without regard to date of filing (1 Gordon & Mailman § 1.03[2][e], at 1-27).

 On October 27, 1992 Karen came to Chicago under a B-1 (temporary visitor for business) or B-2 (temporary visitor for pleasure) nonimmigrant visa, authorizing her to remain in the country through April 27, 1993 (A.R.9, 13; Act § 1101(a)(15)(B); Reg. § 41.12). On March 9, 1993 Karen filed an I-485 application for an adjustment of status under Act § 1255(a) (A.R.9-19). Karen's application was originally premised on the belief that as Sonia's child she would receive a derivative priority date of November 14, 1973, the day that her mother was naturalized (A.R.32; Reg. § 42.53(c)). That date would have put her comfortably within the July 17, 1985 cutoff date then in effect (A.R.34).

 But INS refused to recognize such derivative priority through Sonia, on the ground that at the time that Karen's I-130 visa petition had been filed she was over 21 years of age and was therefore not a "child" for immigration purposes (A.R.34, 48-49). INS considered itself bound by the general rule of Reg. § 42.53(a), rather than by the exception for spouses and "children" provided for in Reg. § 42.52(d). Accordingly it assigned Karen a priority date of November 21, 1990, the day that Sonia had filed Karen's I-130 (A.R. 34, 48-49). Because that date was years after the July 1985 cutoff, Karen's application for an adjustment of status was denied (id.).

 Karen (or perhaps more appropriately, Karen's lawyers) then unearthed a 1966 edition of the Code of Federal Regulations and, attaching several pages as an exhibit, argued by letter that under the regulations then in effect Karen was entitled to derivative priority through her father David and should be assigned an even earlier December 20, 1966 priority date (A.R. 35-47). That prompted Moyer to do some digging of his own, as a result of which he received from the Office of Legislation, Regulations & Advisory Assistance of the Visa Office of the Department of State three pages from the June 1, 1966 Federal Register from which he concluded that the proffered regulations had been rescinded as of that date and were therefore not in effect when David filed his visa petition in December 1966 (A.R. 63-67). Karen's application was denied a second time.

 Ripeness or Exhaustion of Administrative Remedies

 Is defendants' denial of Karen's application for an adjustment of status reviewable by this Court? If that question were to be approached afresh the answer would almost certainly be a close call, involving often-elusive concepts (or as Abbs v. Sullivan, 963 F.2d 918, 925 (7th Cir. 1992) put it, "murky rubrics") of ripeness, exhaustion and perhaps the futility-plus-hardship doctrine (see, e.g., Health Equity Resources, Urbana, Inc. v. Sullivan, 927 F.2d 963, 965-67 (7th Cir. 1991)). In light of the closeness and complexity of the issue, it is scarcely surprising that disparate answers have been given by district courts (contrast Augoustinakis v. INS, 693 F. Supp. 1554 (S.D.N.Y.1988) (no) with Toral Galvez v. Howerton, 503 F. Supp. 35, 38 (C.D. Cal. 1980) and Stokes v. INS, 393 F. Supp. 24, 27-28 (S.D.N.Y. 1975) (yes)), and that Courts of Appeals are split as well (contrast Massignani v. INS, 438 F.2d 1276 (7th Cir. 1971) (per curiam) (no) with Jaa v. INS, 779 F.2d 569, 571 (9th Cir. 1986) (yes)). *fn4" See the discussion in 3 Gordon & Mailman § 81.02[2], at 81-29 to 81-30).

 For this Court the task is much simplified: It is of course bound to follow and apply the decision of our own Court of Appeals in Massignani that the District Director's administrative action is not ripe for judicial review. Because this Court therefore lacks subject matter jurisdiction, this action must ...


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