The opinion of the court was delivered by: JAY C. WALDMAN
Plaintiff Evgeni Reznik is a Ukrainian national residing in Odessa. Plaintiff Genrietta Reznik is his mother and a lawful permanent resident of the United states, now living in Philadelphia. Plaintiffs challenge a denial by the Immigration and Naturalization Service ("INS") in Moscow of Mr. Reznik's application for a waiver of an applicable ground of excludability from the United States. In his case, the applicable ground for exclusion was a murder conviction.
Presently before the court is defendant's Motion to Dismiss or for Summary Judgment and plaintiff's cross-Motion for Summary Judgment.
The facts pertinent to a resolution of the motions are not in dispute.
On December 27, 1990, Mr. Reznik applied with his parents and siblings for refugee status to the INS in Moscow on the ground of persecution because they were Jewish. The family except for Mr. Reznik were granted refugee status.
On an application for refugee status, an applicant is required to note any classification for exclusion from the United States which may apply. In response, Mr. Reznik revealed that he was convicted by court martial of homicide and attached a translation of the report of the proceeding which shows the following.
During his service as a special vehicle operator in the Soviet army, plaintiff was harassed and abused by one Corporal Kazankov. On March 7, 1977, Kazankov asked Mr. Reznik to repair a transistor radio. When Mr. Reznik told Kazankov that the radio was beyond repair, he berated and struck Reznik and threatened that if he did not finish the work satisfactorily by morning, the Corporal would "finish off" Reznik. Shortly thereafter, Mr. Reznik entered a vehicle where Kazankov was resting and fatally struck him six or seven times in the head with an axe handle.
Mr. Reznik was examined by psychiatrists who determined that he did not suffer from any psychiatric disorder and was responsible for his actions. Reznik admitted killing Kazankov and the military tribunal found him guilty of premeditated homicide. In sentencing Mr. Reznik, the tribunal considered the "grave consequences" of the crime, that Mr. Reznik "repents open-heartedly of his deed" and "the illegitimate deeds of [the] victim." Mr. Reznik was sentenced to eight years in a penal colony and was required to pay for the cost of the psychiatric examinations. After serving three years of his sentence, plaintiff was discharged by decision of the People's Court of Semiozersk district, Kustanay region on March 26, 1980 and his criminal record was expunged.
On February 11, 1993, the INS decided that "based on the statements made and the evidence submitted," Mr. Reznik "failed to establish eligibility for a waiver" and his request for reconsideration was denied. On April 5, 1993, Mr. Reznik submitted through counsel to the INS in Moscow a Form I-602 application for a waiver of the ground of excludability. By letter of March 21, 1994, the Officer in Charge denied the waiver application.
Plaintiffs ask the court to grant the waiver application or direct the INS to conduct further proceedings and to award plaintiff attorney's fees.
Defendant contends that the court lacks subject matter jurisdiction, that plaintiffs lack standing and have failed to assert a cognizable claim, and that the INS properly denied Mr. Reznik entry into the United States. Plaintiffs seek judgment on the ground that the INS gave no legitimate reason for its decision to deny the waiver which was arbitrary and capricious.
Plaintiff applied for refugee status under the overseas admission regime of 8 U.S.C. § 1157(c)(1) and for a waiver of the ground of excludability under § 1157(c)(3). Section 1157 provides the sole procedure whereby aliens outside the United States may apply for refugee status. Aliens physically present within the United States or at a land border or port of entry may invoke the asylum procedure of 8 U.S.C. § 1158.
Plaintiffs assert that the court has subject matter jurisdiction to review the denial of the waiver pursuant to 8 U.S.C. ...