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SACCOH v. INS

September 29, 1998

AMANITA SACCOH AND SULAIMAN SACCOH
v.
IMMIGRATION AND NATURALIZATION SERVICE



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

 Broderick, J.

 September 29, 1998

 Plaintiffs Amanita Saccoh and Sulaiman Saccoh seek judicial review of an administrative decision by the District Director of the Immigration and Naturalization Service ("INS"), denying Amanita Saccoh's request for an extension of voluntary departure under 8 C.F.R. § 244.2. Defendant INS has moved to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. For the reasons set forth below, the Court will grant Defendant INS's motion.

 Amanita Saccoh is a native and citizen of Sierra Leone who entered the United States on December 30, 1991 as a nonimmigrant visitor, having represented that she would not remain in the United States beyond June 15, 1992. On May 13, 1994 she was placed in deportation proceedings as an overstayed visitor, after her application for asylum from Sierra Leone was denied. On October 7, 1994, an immigration judge awarded Mrs. Saccoh a form of relief known as "voluntary departure," see INA § 244(e); 8 U.S.C. § 1254(e), which permits recipients who leave within the time allowed to escape the stigma of deportation, select their own destination, and avoid the bar to reentry to the United States which is a consequence of compelled deportation. See 8 C.F.R. § 243.5; Strantzalis v. INS, 465 F.2d 1016, 1017 (3rd Cir. 1972). The October 7, 1994 award of voluntary departure required that Mrs. Saccoh voluntarily leave the country by April 7, 1995. A condition of the grant of voluntary departure was that failure to depart by April 7, 1995 would make Mrs. Saccoh automatically subject to a final order of deportation.

 On March 18, 1995, Mrs. Saccoh married Sulaiman Saccoh, a naturalized United States citizen. On March 29, 1995, approximately a week before her voluntary departure date, Mrs. Saccoh requested an extension of her voluntary departure date pursuant to the former 8 C.F.R. § 244.2, now 8 C.F.R. § 240.57. Mrs. Saccoh did not depart the country by April 7, 1995. On June 8, 1995, the District Director of the INS denied Mrs. Saccoh's request for an extension of her voluntary departure date, making Mrs. Saccoh's continuing presence in the United States unlawful and rendering her ineligible for adjustment from non-immigrant to immigrant status. Mrs. Saccoh is currently under a final order of deportation and is currently deportable to the United Kingdom. She is currently in temporary protected status as a national of Sierra Leone because of civil unrest in that country, but the Attorney General retains authority to deport Mrs. Saccoh to Sierra Leone when her temporary protected status expires.

 Plaintiffs seek review of the District Director's denial of Mrs. Saccoh's request for an extension of her voluntary departure date, contending that the denial was an abuse of discretion. Defendant INS moves the Court to dismiss Plaintiffs' Complaint on the grounds that this Court lacks subject matter jurisdiction.

 In order for a Court to decide the merits of a case, the Court must first have jurisdiction to hear it. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir. 1991). "When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Id. Defendant INS offers three reasons why this Court lacks subject matter jurisdiction over Plaintiffs' case. Defendant INS first contends that both §§ 242(g) and 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) of the Immigration and Naturalization Act, 8 U.S.C. § 1252(g), strip this Court of jurisdiction to review the Attorney General's decision, through her delegate the District Director, to deny an extension of voluntary departure. The INS also contends that the District Director's decision denying an extension of voluntary departure is unreviewable because there are no meaningful standards against which to judge the District Director's exercise of discretion.

 INA Section 242(g)

 Defendant INS contends that this Court lacks jurisdiction to review a decision to deny an extension of voluntary departure due to the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("1996 Immigration Act"). The 1996 Immigration Act repealed the former section of the Immigration and Nationality Act ("INA") which governed judicial review of immigration decisions and replaced it with a new section, 242, 8 U.S.C. § 1252. The amended INA now contains a new provision, section 242(g), which restricts the jurisdiction of certain courts to review particular claims. This provision, entitled "Exclusive Jurisdiction," provides as follows:

 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. § 1252(g).

 Section 242, which went into effect on April 1, 1997, is governed by a retroactivity provision in the 1996 Immigration Act so that § 242(g) applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [the INA]." IIRIRA § 306(c)(1); Auguste v. Reno, 1998 U.S. App. LEXIS 21776, 1998 WL 556263, *2 (11th Cir. 1998)( § 242(g) applies retroactively); American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367, 1371 (9th Cir. 1997)(same); Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997)(same); Ramallo v. Reno, 325 U.S. App. D.C. 2, 114 F.3d 1210, 1213 (D.C.Cir. 1997)(same).

 Plaintiffs claim that the denial of an extension of voluntary departure is not covered by § 242(g) because the Attorney General did not "commence [a] proceding[], adjudicate [a] case[], or execute [a] removal order[]." On the contrary, the Attorney General, through her delegate the District Director, was adjudicating Mrs. Saccoh's case -- that is her request for an extension of voluntary departure -- under the INA. It is precisely that adjudication which Plaintiffs now challenge. Likewise, Mrs. Saccoh's claim arises from the Attorney General's decision (through her delegate, the District Director) to execute a removal order, also known as a deportation order, IIRIRA § 309(d)(2). The Attorney General's denial of Mrs. Saccoh's request for an extension of voluntary departure was a decision to execute a deportation order in that the denial made Mrs. Saccoh automatically subject to deportation, notwithstanding the fact that she is currently in temporary protected status due to civil unrest in her country. Tutu v. Blackman, 9 F. Supp. 2d 534, 1998 WL 3221281, *3 (E.D.Pa. 1998). Mrs. Saccoh's claim ...


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