The opinion of the court was delivered by: FOGEL
Presently before us are Plaintiffs' motion for summary judgment and Defendant's motion to dismiss. The facts are not in dispute; the sole legal question before us is whether Defendant abused his discretion in denying Plaintiff's
application for adjustment of status to permanent resident pursuant to 8 U.S.C. § 1255.
For the reasons which follow, we find there was no abuse of discretion, and Plaintiff is not entitled to be accorded permanent resident status.
Plaintiff Boe Manneh is a Liberian citizen. On May 25, 1972, he entered this country at JFK Airport in New York, where he was met by his "adoptive" father, Alfred Kai-Kai, a resident of Philadelphia. At the time of entry, Plaintiff held a valid Liberian passport and a valid "visitor for pleasure" visa. He was told by Immigration and Naturalization Service (INS) officials to present himself in Philadelphia on June 1, 1972, to complete formal processing for admission; Plaintiff complied, and met with Mr. Zinnie of the INS. Plaintiff was told that he would have to post a $1,000.00 bond as a condition of admission as a "visitor for pleasure." Plaintiff was also advised of the bond requirement by letter dated June 1, 1972. Manneh and Kai-Kai requested a lower bond; Zinnie told them he would "let them know" about a lower bond. Kai-Kai returned to the INS shortly thereafter to again discuss the possibility of a lower bond. He was advised by Zinnie that he should wait to hear from him. [Tr. 13, 4/30/75, INS file A20 460 984.] After a wait of approximately two months (caused by Zinnie's illness), Kai-Kai called Zinnie to find out the status of the matter, and was again reassured that he would hear from Zinnie. [Tr. 13, 4/30/75.] He never did hear from Zinnie, and, as a result, Manneh never posted any bond.
In September, 1972, Plaintiff commenced employment with Penn Electric Supply Company without INS permission. He continues to hold his position as a stock clerk today. Plaintiff does not hold a certificate of need from the Department of Labor as provided in 8 U.S.C. § 1182(a)(14), although his employer has filed a letter attesting to Plaintiff's qualifications as an industrious worker, and the employer's need for Plaintiff's services.
On April 30, 1975, Plaintiff was apprehended by INS agents. At an exclusion hearing held that same day, the immigration judge found that, since Plaintiff was not a bona fide visitor at the time of the hearing, he must be excluded and deported. This deportation order was not effectuated because there was no valid travel document for Manneh. At that time Plaintiff's employer posted a $1,000.00 bond.
On May 23, 1975, Plaintiff married the former Annie Lee Lambright. Two days later Annie Manneh filed an immediate relative petition. Defendant investigated this marriage and found it to be bona fide and valid, and approved the petition on March 24, 1976. On March 29, 1976, Boe Manneh made application to have his status adjusted to permanent resident pursuant to 8 U.S.C. § 1255.
On April 21, 1976, Manneh's application was denied; his motion to reconsider was denied June 7, 1976. On June 9, 1976, Defendant ordered that Manneh be deported on June 17, 1976.
The instant action was filed June 16, 1976, seeking injunctive and declaratory relief. We granted a temporary restraining order the same day prohibiting Defendant from enforcing the deportation order. After a hearing June 28, 1976, we preliminarily enjoined Defendant from deporting Manneh pending our resolution on the merits.
On August 19, 1976, the entire matter was remanded to INS for a determination of whether it had jurisdiction in an exclusion hearing context to consider Plaintiff's application for permanent residence pursuant to 8 U.S.C. § 1255. INS determined that it did not have jurisdiction; hence, the case is now before us on Plaintiff's motion for summary judgment and Defendant's motion to dismiss, which, because of the record before us, we will treat as a motion for summary judgment.
Our scope of review in this matter is limited to a determination of whether Defendant abused his discretion in denying Plaintiff's application for adjustment of status to permanent resident pursuant to 8 U.S.C. § 1255. The determination of whether Defendant abused his discretion has been articulated as follows:
[The] standard for the proper exercise of discretion with respect to a petition for adjustment of status was said to be the one expressed in Santos v. ...