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TUTU v. BLACKMAN

June 18, 1998

GARWEE K. TUTU AND RONNIE DAVIS, Plaintiffs,
v.
J. SCOTT BLACKMAN, DISTRICT DIRECTOR, U.S. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.



The opinion of the court was delivered by: BUCKWALTER

MEMORANDUM

 BUCKWALTER, J.

 June 18, 1998

 Plaintiffs, Garwee K. Tutu ("Tutu") and Ronnie Davis ("Davis") seek review of Defendant's denial of Tutu's request for an extension of voluntary departure. *fn1" Presently before the court is a motion by Defendant, J. Scott Blackman, District Director of the U.S. Immigration and Naturalization Service in Philadelphia, ("District Director"), for dismissal of Plaintiffs' complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and Plaintiffs' response. *fn2" For the following reasons, the District Director's motion will be granted.

 I. BACKGROUND

 Tutu is a citizen of Liberia and currently married to Davis, a United States citizen. Tutu entered the United States on October 5, 1993 as a nonimmigrant visitor, stating to officials that she would not remain in the United States beyond April 4, 1994. After failing to leave by that date, Tutu was placed in deportation proceedings. At a deportation hearing on August 10, 1995, she agreed to depart voluntarily by February 10, 1996 pursuant to the voluntary departure provision of the former Immigration and Naturalization Act ("INA") § 244(e), now INA § 240B. (Former 8 U.S.C.A. § 1254e (1997), now 8 U.S.C.A. § 1229c (1998)). A condition of the agreement was that if she failed to voluntarily depart by February 10, 1996, an Order of Deportation would take effect. *fn3" On September 9, 1995 Tutu married Davis and on November 8, 1995, Davis submitted a petition for an immigrant visa for Tutu. On February 2, 1996, Tutu, through counsel, requested an extension of voluntary departure under the former 8 C.F.R. § 244.2, now 8 C.F.R. § 240.57.

 Tutu was arrested on April 2, 1996, for failing to leave by February 10, 1996, and was taken into custody for deportation to Liberia. *fn4" On May 10, 1996 the INS approved Davis' Immigrant Visa Petition for his wife as an immediate relative. On May 12, 1996 the District Director denied Tutu's request for an extension of voluntary departure. This denial made Tutu's continuing presence in the United States unlawful and renders her ineligible for adjustment from non-immigrant to immigrant status. Plaintiffs seek review of this denial.

 II. DISCUSSION

 Before a court may decide the merits of a case, the court must first have jurisdiction to hear it. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir. 1991)(citing Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). In response to a motion under Fed. R. Civ. P. 12(b)(1), the Plaintiff has the burden of proving the existence of subject matter jurisdiction. See id. The District Director offers three reasons why this court lacks subject matter jurisdiction over Plaintiffs' case. The District Director asserts that both §§ 242(g) and 242(a)(2)(B) of the INA strip this court of subject matter jurisdiction to review a denial of an extension of voluntary departure, and that even if these new statutes do not apply in the instant case, this Court still lacks jurisdiction to review a discretionary decision of the Attorney General. I find all three reasons equally persuasive.

 First, the District Director contends that this court may not review his decision to deny an extension of voluntary departure because of recent changes in immigration laws contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). (Pub. L. No. 104-208, 110 Stat. 3009-546 (1996)). Section 306 of the IIRIRA completely reformed immigration laws and restructured judicial review of deportation orders. *fn5" The purpose of sections 301 through 309 of the IIRIRA is to "streamline[] rules and procedures in the [INA] to make it easier to deny admission to inadmissible aliens and easier to remove deportable aliens from the United States." H.R. Rep. 104-469 (I), 104th Cong., 2d Sess. 359, 463 (1996) (reproduced at 1996 WL 168955). The IIRIRA repealed former section 106 of the Immigration and Nationality Act ("INA") and replaced it with a new section, 242. (INA § 242, 8 U.S.C.A. 1252; IIRIRA § 306(a)(2), Pub. L. 104-208, 110 Stat. 3009 (1996)). The amended INA now contains a new provision, section 242(g), which restricts the jurisdiction of certain courts to review particular claims. INA § 242(g), 8 U.S.C.A. 1252(g); IIRIRA § 306(c)(1). The provision, entitled "Exclusive Jurisdiction" states:

 Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

 INA § 242(g), 8 U.S.C.A. 1252(g)

 Section 242 went into effect on April 1, 1997. See Auguste v. Attorney General, 118 F.3d 723, 725 (11th Cir. 1997). Section 242(g) contains a retroactivity provision, it applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [the INA]." IIRIRA § 306(c)(1), Pub. L. No. 104-208, 110 Stat. 3009-656 (1996).

 Defendant claims that INA § 242(g) applies to the instant case because Plaintiffs seek a review of the District Director's denial of an extension of voluntary departure. Case law, legislative history, and the language of ...


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