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DEBRAUN v. MEISSNER

March 28, 1997

ROSA INGRID PEREZ FERNANDEZ DeBRAUN, t/a IMMIGRATION INFORMATION SERVICES
v.
DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE and M. FRANCES HOLMES, ACTING DISTRICT DIRECTOR, PHILADELPHIA DISTRICT



The opinion of the court was delivered by: DITTER

 Ditter, J.

 March 28, 1997

 I. Background1

 Since 1992, the plaintiff, Rosa Ingrid Perez Fernandez DeBraun, individually and trading as Immigration Information Services, has provided fingerprinting and photography services for immigrants and others at three different locations in Philadelphia, Pennsylvania: two permanent offices and a mobile recreational vehicle which, since 1992, she has routinely parked on 16th and Callowhill, immediately in front of the Immigration and Naturalization Service (INS) district office. Applicants for various types of immigration benefits must submit fingerprints with their application. The INS then sends the fingerprints to the Federal Bureau of Investigation which checks to see if the applicant has a criminal history, thereby rendering the applicant ineligible for benefits. In the past, INS district offices were responsible for fingerprinting all applicants. However, because available funding dwindled and the number of applications increased, outside providers have recently assumed the majority of the fingerprinting services.

 Pursuant to an investigation by the Department of Justice's Office of Inspector General, which uncovered problems regarding fingerprint quality, the INS decided to regulate the fingerprinting process. In light of that goal, on May 15, 1995, the INS proposed a regulation, which it publicized in the Federal Register, and solicited comments from the public. See Certification of Designated Outside Entities to Take Fingerprints, 60 Fed. Reg. 25,856 (1995) (to be codified at 8 C.F.R. §§ 103 & 299) (proposed May 15, 1995). Through the regulation, the INS hoped that by certifying outside services to take the fingerprints of applicants for immigration benefits, it would facilitate the processing of the applications and "protect the integrity of the fingerprinting process while relieving the strain on Service resources." Id. Among other requirements, the proposed regulation stated that the fingerprinting service must "maintain clean and suitable facilities that are accessible to the general public." Id. at 25,862 (citing proposed 8 C.F.R. § 103.2(e)(6)(xviii)). The public comment period ended in July of 1995. Without further notice or comment and almost one year later, on June 4, 1996, the INS published its final rule. As promulgated, section 103.2(e)(6)(xviii), the section contested by Ms. DeBraun, provides that the designated fingerprinting services (DFS) must "maintain facilities which are permanent and accessible to the public. The use of the terms permanent and accessible to the public shall not include business or organizational operations in private homes, vans or automobiles, mobile cars, and removable stands or portable storefronts." Certification of Designated Fingerprinting Services, 61 Fed. Reg. 28,003, 28,012 (1996) (codified at 8 C.F.R. § 103.2(e)(6)(xviii)).

 Ms. DeBraun's attorney wrote a letter to the INS inquiring whether a new round of public commentary would occur because, in his client's view, the requirement of permanency and the exclusion of operations in vans were material changes from the proposed regulation. *fn2" The INS did not respond to the letter.

 Subsequently, Ms. DeBraun applied for certification as a fingerprinting service for her two permanent offices and the mobile van. The Philadelphia District Office of the INS certified her two permanent offices, but on February 25, 1997, the district office denied her application with respect to her mobile facility. Accordingly, after March 31, 1997, the INS will no longer accept fingerprints taken in her van. *fn3"

 Basing her complaint primarily on the Administrative Procedures Act, *fn4" Ms. DeBraun claims that the INS' conduct "in promulgating the Rule in question was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law." (Compl. P 37). She states that the INS' action was "contrary to constitutional right, power, privilege, or immunity," (id. P 38), that the INS acted in excess of its statutory authority, and that the INS failed to observe the procedures required by law. (Id. PP 39-40). In addition, she makes several other claims not relevant here. *fn5"

 II. Standard of Review

 Ms. DeBraun seeks injunctive and declaratory relief requesting that I enjoin *fn6" INS officials from enforcing the requirement that a fingerprinting facility have a permanent, non- mobile location, specifically 8 C.F.R. § 103.2(e)(6)(xviii), and that I declare that section invalid. In response to Ms. DeBraun's complaint, the defendants have filed an answer and a "Motion to Dismiss and for Judgment on the Pleadings." See doc. # 10; see also Fed. R. Civ. P. 12(b)(6), 12(c). *fn7" A party must file a 12(b)(6) motion prior to filing a responsive pleading. Accordingly, because the defendants have answered the complaint, I must treat this only as a motion for judgment on the pleadings. See Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991). Nonetheless, the standard for both motions is identical. Id. In addressing this motion, I am required to consider as true any well-pleaded factual allegations in the pleadings, I must draw any permissible inferences from those facts in the non-moving party's favor, and I may grant the defendants' motion only when the plaintiff has alleged no set of facts which, if subsequently proved, would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). However, I am not obligated to consider as true any conclusory or legal allegations asserted by the non-moving party.

 III. Discussion

 Section 706(2) of the APA provides that I may invalidate an agency action if I find it to ...


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