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three pages from the June 1, 1966 Federal Register from which he concluded that the proffered regulations had been rescinded as of that date and were therefore not in effect when David filed his visa petition in December 1966 (A.R. 63-67).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)).
See the discussion in 3 Gordon & Mailman § 81.02, 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 be dismissed.
It should be emphasized that this result does not entirely foreclose ultimate judicial review, but simply defers it for potential presentation at a later date before a different court. There is no question that Karen can assert her claims before an Immigration Judge ("IJ") in a deportation proceeding, followed by an appeal to the Board of Immigration Appeals ("BIA") and by review by the Court of Appeals pursuant to Act § 1105(a) (see, e.g., Patel v. INS, 738 F.2d 239 (7th Cir. 1984)). By invoking the exhaustion doctrine to deny any level of review by the District Court via Section 1329, our Court of Appeals has exercised a judgment not to afford an applicant judicial review twice--once by resort to the District Court from the District Director's discretionary denial of an adjustment status, and then again by resort to the Court of Appeals following a de novo presentation to an IJ and an appeal to the BIA. To the identical effect, Kashani v. Nelson, 793 F.2d 818, 823-27 (7th Cir. 1986) has held in a closely related context that an alien seeking asylum may not obtain district court review of the District Director's denial of an asylum petition, nor may the alien enjoin deportation proceedings--instead he or she must exhaust administrative remedies by renewing the asylum petition in the ensuing deportation proceeding (accord, Yim Tong Chung v. Smith, 640 F. Supp. 1065, 1068-69 (S.D.N.Y. 1986)).
Although voiced in a very different context, In re Establishment Inspection of Kohler Co., 935 F.2d 810, 812 (7th Cir. 1991) identifies the several familiar interests embodied in the exhaustion doctrine and brought to bear in both Massignani and Kashani:
The exhaustion doctrine protects the autonomy of administrative agencies, respects administrative expertise, facilitates judicial review by ensuring a well-developed factual record, and promotes judicial economy by avoiding piece-meal review of cases and by giving the agency the opportunity to resolve the case to the parties' mutual satisfaction without judicial interference.
Those jurisprudential concerns bulk large in immigration law, whose mazelike complexity has been both (1) compared to King Minos' labyrinth and (2) cited as a prime example of "Congress's ingenuity in passing statutes certain to accelerate the aging process of judges" ( Tim Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977)).
Because Karen has failed to exhaust her administrative remedies, this action is not ripe for judicial review, and so it must be and is dismissed for lack of subject matter jurisdiction.
That renders both of defendants' alternative motions and Karen's cross-motion moot. As n.2 reflects, if either side disagrees with this sua sponte dismissal of the action, Rule 59(e) prescribes the method and the timing for seeking reconsideration.
Milton I. Shadur
Senior United States District Judge
Date: January 4, 1995
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED Defendants' motion to dismiss is denied. Defendants' motion for summary judgment is denied. Plaintiff's motion for summary judgment is denied. Order case dismiss for lack of subject matter jurisdiction.
January 4, 1995