DIMOCK, District Judge.
In this action for a declaratory judgment defendant moves under Rule 12(c) of the Federal Rules of Civil Procedure for dismissal of plaintiffs' claim, denominated
Defendant moves also for summary judgment under Rule 56 with respect to plaintiffs' "Second Cause of Action", which I shall hereinafter refer to as the "second claim", on the grounds that (1) there is no genuine issue as to any material fact, and (2) defendant is entitled to judgment as a matter of law.
Unless I deny defendant's motions, plaintiffs cross-move, pursuant to Rule 56(f), for an order postponing and continuing the hearing of defendant's motions until such time as plaintiffs may have taken the depositions of certain persons, named and unnamed.
The affidavits and exhibits show that plaintiffs are alien seamen, nationals of Yugoslavia or Latvia, who reside in this country and are admittedly deportable as illegal entrants or as temporary entrants who overstayed the period allowed them for shore leave. Subsequent to the enactment of section 15(a) (3) of the Act of September 11, 1957, 71 Stat. 643, plaintiffs filed applications with the Immigration and Naturalization Service for adjustment of their status from nonimmigrants to permanent-resident immigrants under section 245 of the Immigration and Nationality Act, 66 Stat. 217, 8 U.S.C. § 1255 (later amended by 72 Stat. 699), or for pre-examination to determine their admissibility as immigrants under part 235a of Title 8, Code of Federal Regulations. A prerequisite to the granting of either adjustment of status or pre-examination was the availability of an immigrant visa.
Defendant says, without contradiction by plaintiffs, that the immigration quotas to which each of the plaintiffs belong were and continue to be oversubscribed and that their eligibility for adjustment of status thus depends on the availability of non-quota visas. Section 15(a) (3) of
Inasmuch as none of the plaintiffs had entered the United States as a "nonimmigrant visitor or student" defendant did not then forward their applications to ORMA even though there was no justification in section 15 for the provision in section 245.1 of the Regulations which limited the class eligible for refugee-escapee visas to aliens who had been admitted as nonimmigrant visitors or students. Plaintiffs thereupon instituted this action then containing only the first claim which sought a declaratory judgment establishing that defendant's denial of their right to apply for refugee-escapee visas was illegal and unconstitutional and that plaintiffs were "eligible for such visas and should be permitted to establish their eligibility for a visa under Section 15 on the merits in the same manner permitted other refugees, not similarly discriminated against." Plaintiffs' motion for an injunction staying deportation pendente lite was granted on consent of defendant.
Sometime thereafter defendant was advised by the United States Attorney for this District that the limitation in section 245.1 of the Regulations was untenable. Defendant thereupon forwarded plaintiffs' applications to ORMA. The applications of three of the plaintiffs were approved by ORMA. The applications of the remaining plaintiffs were denied on the ostensible ground that they had not proved, as required by section 15, that they had fled from Yugoslavia or Latvia because of persecution or for fear of persecution on account of race, religion or political opinion.
On May 1, 1959, the limitation was formally eliminated from section 245.1 of the Regulations so that it read:
Plaintiffs thereupon made motions for reconsideration which were denied. In July 1959 plaintiffs, with leave of court, amended their complaint so that it now asks for a judgment declaring with respect to the first claim:
Plaintiff's claim is that the Regulation's attempted limitation of the benefits of section 15 to nonimmigrant visitors and students was the result of a determination by the Attorney General which was embodied in a direction by the Attorney General to the State Department and that, in spite of the change in the Regulation and in spite of the issuance of visas to three crewmen, the direction was the real basis for the denial of visas to the rest. No matter what the basis for the denial of the visas, that denial may be reviewed by a proceeding brought against the Secretary of State. Plaintiffs here, instead of thus attacking the State Department's refusal of the visas directly, ask, in substance, for a declaration that the alleged action of the Attorney General was the real basis for the State Department's refusal.
Plaintiffs' second claim alleges that applications which they made to the Attorney General for the withholding of deportation because they feared physical persecution, under section 243(h) of the Immigration and Naturalization Act, 66 Stat. 212, 8 U.S.C. § 1253(h), were denied sometime between March and May 1959 not on their merits as they purported to be but actually because the applicants were crewmen. They ask for the following declarations:
As above stated, a temporary injunction has been issued on consent.
There is no occasion for the elaborate set of declarations requested. For instance Request C is a loaded question. Defendant strenuously denies that the reason for the denial of the applications for stays was that plaintiffs entered
Treating, therefore, the second claim as an application for a declaratory judgment that the Attorney General's refusal of a stay was unlawful and for an injunction, I pass to defendant's motion for summary judgment dismissing it.
Plaintiffs charge here, as they did in support of their first claim, that defendant and his superior, the Attorney General, had a definite policy which controlled their decisions and the decisions of the State Department in the cases of crewmen. So far as the first claim is concerned we have the change in section 245.1 of the Regulations which officially removed the declaration of the Immigration and Naturalization Service that only nonimmigrant visitors and students were entitled to the benefits conferrable under section 15. That regulation as changed, however, not only had no direct application to petitions made under section 243 (h) to the Attorney General with which the second claim is concerned but was not in existence when the decisions denying the petitions were made. Thus there is no such strong record of official intention to include crewmen in the benefits of section 243(h) as there is in the case of benefits under section 15.
Plaintiffs in evident good faith make the serious charge that the decisions of the Attorney General were based upon an ulterior influence rather than the ostensible record. They wish to support this charge with evidence. If they can support it they are entitled to an injunction against the enforcement of the decisions. See Radio Corp. of America v. United States, D.C.N.D.Ill.E.D., 95 F.Supp. 660, 668, affirmed 341 U.S. 412, 71 S.Ct. 806, 95 L.Ed. 1062.
Defendant says that there are no genuine fact issues in the second claim. He says that the administrative records of plaintiffs who applied for the withholding of deportation, which defendant has submitted on this motion, are too specific to be met by the mere "hypothesis and speculation" which plaintiffs offer in answer. Plaintiffs argue that the records are irrelevant unless compared with the records of applicants who were not crewmen and that plaintiffs are unable to submit affidavits in opposition to defendant's motion because "the facts necessary for plaintiffs' case are contained in the general records of the defendant and known to a limited number of officers of the Immigration and Naturalization Service."
Plaintiffs' contention that the records are irrelevant is without foundation. The records of the plaintiffs who applied for withholding of deportation and have not withdrawn their applications or asked that they be held in abeyance
Plaintiffs claim, however, that, if they are permitted to take the depositions of the Commissioner of Immigration and Naturalization or a deputy designated by him, of defendant or a deputy designated by him, and of other persons whose identity is still to be determined, they can obtain evidence to support their claims. Knowledge of the facts may, as plaintiffs claim, be exclusively or largely under the control of defendant and, until plaintiffs have had an examination of defendant and/or those closely associated with him, I do not wish to foreclose the possibility of their establishing their claims. See Peter Pan Fabrics, Inc. & Henry Glass & Co. v. Dixon Textile Corporation, 2 Cir., 280 F.2d 800. I therefore grant plaintiffs' cross-motion, pursuant to Rule 56(f), for an opportunity to take depositions on condition that plaintiffs complete the discovery requested in their "Notice of Motion Under Rule 56(f), F.R.Civ.P." within 90 days after the appearance of a note of this decision in the New York Law Journal. Otherwise the cross-motion is denied and defendant's motion directed to the second claim is granted.
Defendant argues that plaintiffs' cross-motion should not be allowed "without the sanction of Rule 56(g) and 28 United States Code, Section 1927". The text of these provisions is set out in the margin.
Settle order on notice.
FootNotes
"§ 235a.1 Application. Any alien, except a citizen of Canada, Mexico, or islands adjacent to the United States, who entered the United States prior to January 1, 1957, and has been continuously physically present in the United States since that date, shall apply for preexamination on Form I-63 if he intends to apply to a consular officer of the United States in Canada for an immigrant visa and he believes that he will be admissible to the United States under all the provisions of the immigration laws if in possession of an immigrant visa; that he will be able to obtain the prompt issuance of an immigrant visa, and that he is a person of good moral character. * * *
"§ 235a.11 Disposition of case. If preexamination has been authorized, the applicant shall not be preexamined until he has presented written assurance from the consular officer of the United States in Canada that a visa will be promptly available if upon personal examination he is found eligible for a visa, and a report from a medical officer of the United States Public Health Service setting forth findings of the applicant's mental and physical condition. * * *"
Section 245 of the Immigration and Nationality Act provides: "(a) The status of an alien who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status may be adjusted by the Attorney General in his discretion (under such regulations as he may prescribe to insure the application of this paragraph solely to the cases of aliens who entered the United States in good faith as nonimmigrants) to that of an alien lawfully admitted for permanent residence as a quota immigrant or as a nonquota immigrant under section 1101(a) (27) (A) of this title, if * * (3) a quota or nonquota immigrant visa was immediately available to him at the time of his application for adjustment, (4) a quota or nonquota immigrant visa is immediately available to him at the time his application is approved, * *."
"§ 1927. Counsel's liability for excessive costs
"Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs."
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