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EL-OMRANI v. DIRECTOR

January 9, 1986

GHALI M. EL-OMRANI, Plaintiff
v.
DIRECTOR, UNITED STATES INFORMATION AGENCY and LYLE L. KARN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Defendants



The opinion of the court was delivered by: MCCUNE

BARRON P. McCUNE, District Judge.

 Plaintiff Ghali M. El-Omrani, a native and citizen of Libya, entered the United States on August 29, 1980, as an F-1 nonimmigrant student. See, 8 U.S.C. § 1101(a)(15)(F). Because this was an erroneous classification plaintiff was reclassified as a J-1 exchange student. See, 8 U.S.C. § 1101(a)(15)(J).

 As a J-1 exchange student, plaintiff is subject to the requirement that he return to and reside in his native country for at least two years before applying for an immigrant visa or for permanent residence. 8 U.S.C. § 1182(e).

 First, the INS reviews the plaintiff's application and makes a determination on whether the two year residence requirement would impose exceptional hardship on the applicant's spouse or child (spouse or child must be citizens of the United States) or subject the applicant to persecution in his native country. If such a determination is made the INS must request a recommendation from the United States Information Agency (USIA) which reviews the application as it relates to foreign policy and relations. If a favorable recommendation is made the Attorney General may waive the two year residence requirement. It should be noted that the Attorney General has delegated this function to the INS Associate Commissioners and District Directors. 8 C.F.R. § 103.1(f) & (n).

 In reviewing the application and plaintiff's circumstances in the instant case the INS determined that compliance with the foreign residence requirement would impose exceptional hardship on the plaintiff's spouse, who is a United States citizen, and that the plaintiff would be subject to persecution if he returned to Libya.

 The INS forwarded plaintiff's application to the USIA which declined to make a favorable recommendation on February 5, 1985. The INS thereafter denied the waiver on April 8, 1985.

 Plaintiff filed the present action on June 21, 1985, seeking a reversal of the decision denying the waiver as an abuse of discretion.

 The defendants have moved to dismiss the action for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction.

 The plaintiff has responded with a motion for summary judgment.

 For the reasons stated below, the defendants' motions to dismiss will be granted.

 Discussion

 Although plaintiff's complaint is, for the most part, directed towards the actions of the USIA, the plaintiff nevertheless seeks review of the actions of the INS as well.

 The complaint as it pertains to the INS can, however, be dealt with rather summarily. The issue we must decide is simply whether the INS has the statutory authority to grant the waiver application ...


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