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UNITED STATES EX REL. PARCO v. MORRIS

January 28, 1977

UNITED STATES OF AMERICA EX REL. JOSE PARCO AND LUZVIMINDA PARCO, HIS WIFE
v.
RAYMOND A. MORRIS, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE



The opinion of the court was delivered by: BECKER

 EDWARD R. BECKER, J.

 I. Preliminary Statement

 Jose and Luzviminda Parco, husband and wife, are citizens of the Philippines who have resided as aliens in the United States since 1970. After a joint deportation hearing, an immigration judge found that each was deportable under 8 U.S.C. § 1251(a)(2) as one who has overstayed a non-immigrant visa, but granted each of the Parcos the privilege of voluntary departure in lieu of deportation. *fn1" The deadline for voluntary departure was set for June 30, 1973, but on June 25, the Parcos applied to the district director of the Immigration and Naturalization Service (predecessor of the respondent) for an indefinite extension of this date, *fn2" and they did not depart. On September 21, 1973, their extension applications were denied and final orders of deportation issued. On October 18, 1973, the district director of the Immigration and Naturalization Service (INS) denied applications for stay of deportation, *fn3" whereupon the Parcos commenced this action for a writ of habeas corpus pursuant to 8 U.S.C. § 1105a(a)(9) and 28 U.S.C. § 2241(c)(1) and (3), *fn4" attacking the denial of their applications for extended voluntary departure.

 The Parcos assert (and the government concedes) that their applications for extended voluntary departure would have been granted when filed had not the INS recently changed the bases on which district directors were authorized to grant such applications. They contend (and this the government sharply disputes) that the district director's denial of their extended voluntary departure application was unlawful, because the policy change on which the denial depended was implemented without the advance, public notice required by law, and they therefore missed by some thirty days their opportunity to receive the benefit of the prior, favorable policy. Second, they argue that an agency policy of such long-standing as the one at issue may not, as a matter of administrative law, be changed without adequate reasons. They claim that the reversal of agency policy which left them ineligible for extended voluntary departure was not so supported. Finally, the Parcos contend that the policy change resulted from improper Congressional pressure on the INS, in violation of principles of administrative law and the doctrine of Constitutional separation of powers. The government replies that the policy change in issue here was legally exempt from the requirement of prepublication; that the agency's reasons for the change of position were adequate; and that the alleged Congressional prompting does not invalidate the new rule.

 This case does not involve a garden variety application for stay of deportation or application for extended voluntary departure issue. The legal posture of this case is radically affected by the government's factual concession that:

 
The request for extended voluntary departure of [Mrs. Parco] was denied solely because of the general change in the program of the Immigration and Naturalization Service of July 1972 not to grant extended voluntary departure for beneficiaries of approved Third Preference Petitions filed after July 31, 1972. *fn5"

 Pretrial Order, Stipulation 15 (Dock No. 22, filed Feb. 13, 1976); Stipulation of Fact, para. 4 (Dock No. 23, filed Feb. 13, 1976). Because it is agreed that the respondent did not exercise independent discretion on the facts of this case, but rather purported to follow a legal rule, our review concerns the validity of the rule and is plenary, rather than strictly limited as it would otherwise be. Hou Ching Chow v. Attorney General, 362 F. Supp. 1288, 1290 (D.D.C. 1973); see Wong Wing Hang v. INS, 360 F.2d 715, 718 (2d Cir. 1966). Compare 5 U.S.C. § 706 (2)(B), (C), (D) (review of legal questions), with id. § 706 (2)(A); Spata v. INS, 442 F.2d 1013 (2d Cir.), cert. denied, 404 U.S. 857, 92 S. Ct. 107, 30 L. Ed. 2d 99 (1971); Discaya v. INS, 339 F. Supp. 1034 (N.D.Ill. 1972) (INS discretion to deny extended voluntary departure to beneficiaries of approved preference petitions will not be overturned absent clear abuse proved on the facts, even though general policy is to grant it.). We therefore treat this case as presenting almost pure questions of law. On that level, we reject the Parcos' Congressional interference argument and find their lack-of-rational-basis claim unpersuasive in this case. The Parcos' first claim, however, respecting the legal inadequacy of notice of the impending change of rule is, we believe, meritorious. Accordingly, we will grant the writ of habeas corpus and order appropriate relief.

 II. The Legal and Factual Background

 A. Third Preference Aliens and Extended Voluntary Departure

 To understand the Parcos claims in any detail, they must be put in a setting of immigration law, illuminated by an explication of certain peculiar (background) facts of this case. In any given year, a quota of 170,000 natives of the Eastern Hemisphere, including Filipinos, may receive visas to enter the United States as immigrants for permanent residence. 8 U.S.C. § 1152(a). Of these, up to 17,000 of the visas are reserved for holders of approved Third Preference petitions: alien professionals and those with exceptional ability in the sciences or arts. These professionals, scientists and artists are known as "PSA" aliens. 8 U.S.C. § 1153(a)(3). *fn6" Of the 170,000, no more than 20,000 visas in any given year may go to Filipinos. Id. § 1152(a). In recent years, demand for visas by Filipinos has vastly exceeded the supply. Thus, the Visa Office in the Department of State, which maintains records and publishes a bulletin on visa availability, shows approximately a six year waiting period before a visa can be issued to a Filipino who files a Third Preference petition. *fn6"

 Under an INS policy in effect at least from July, 1956, until July 31, 1972, a non-immigrant, physically present in the United States, who was subject to deportation but who filed a satisfactory Third Preference visa petition, was eligible for "extended voluntary departure." INS Operating Instruction (OI) 242.10(a)(6)(i). *fn7" This meant, in effect, that no firm date to leave the United States was set, and the alien could await the availability of a visa while remaining in this country. When the visa became available, the alien could then apply for an adjustment of status to that of permanent resident alien. 8 U.S.C. § 1255. Deportation, or even departure from the United States, was thus entirely avoided.

 This INS policy was terminated in July, 1972. On July 17, the Associate Commissioner of INS for Operations, James F. Greene, circulated a memorandum to all district directors announcing the rescission of OI 242.10(a)(6) (see note 7 supra) effective July 31, 1972. *fn8" The effect of the memorandum was to remove the discretion of district directors to extend indefinitely the voluntary departure of third preference petitioners on that basis; the privilege was only to be granted in "compelling" cases. See OI 242.10(a)(8), supra note 7. An exception was provided, however, for those whose preference petitions were filed prior to July 31, 1972.

 Mrs. Parco filed her petition for Third Preference status on September 8, 1972, and it was ultimately approved. *fn9" Because of the rescission of OI 242.10(a)(6)(i), however, this petition came too late by just over one month to achieve extended voluntary departure. As noted above, it is undisputed here that the Parcos could have remained in the country indefinitely awaiting the availability of visas if the petition had been filed before July 31. Instead, they ...


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