The appellants, who are Yugoslav and Latvian seamen, appeal from judgments of the district court which (1) dismissed appellants' claims seeking adjustment of status from nonimmigrants to permanent-resident immigrants, 8 U.S.C. § 1255, for failure to join the Secretary of State (185 F.Supp. 478), and (2) dismissed on the merits appellants' claim that they were denied discretionary stays of deportation under Section 243 (h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), because of an unlawful policy against granting such relief to crewmen (209 F.Supp. 673). We affirm both judgments.
Appellants are concededly deportable aliens.
The first claim relates to an attempt by appellants to have their nonimmigrant status adjusted to that of permanent resident immigrants pursuant to Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255.
24 Fed.Reg. 3491 (May 1, 1959).
Appellants and several others submitted applications for visas to the appellee, and after an initial delay (see footnote 4), the applications were forwarded by appellee to the Office of Refugee and Migration Affairs, Department of State. Three of the applications were approved, the remainder were denied for the stated reason that the applicants had not proved, as required by Section 15,
Appellants thereupon filed an amended complaint seeking a judgment which would declare the denial of relief unlawful because it had been based not on individual consideration of the merits of appellants' applications, but on an unlawful policy directive from the Attorney General to the Department of State, directing that "refugee-escapee" visas be denied to crewmen. Judge Dimock held that the Secretary of State was an indispensable party defendant, and that since the Secretary neither had been nor could be joined, former 28 U.S.C. § 1391, 62 Stat. 935 (1948), the claim should be dismissed.
The gravamen of appellants' claim is that they were unlawfully denied "refugee-escapee" visas. It is clear from the statute and regulations set forth above that power over the issuance of visas resides exclusively in the consular officers and the Office of Refugee and Migration Affairs of the Department of State. See also 8 U.S.C. §§ 1101(a) (16), 1201, 1202, 1204; 22 C.F.R. (1958 rev.) parts 40, 41, 42, §§ 44.2(d), 44.3, 44.6. Appellee has no power over the issuance of visas; once he had forwarded appellants' applications for adjustment of status to the Department of State for a determination of whether visas were available, there was nothing more that he could do. The subsequent denial of appellants' applications was required by the Department's determination that no visas were available. Since appellee has no power to grant the relief sought by appellants, issuance of a decree against the appellee would be a useless act.
In Ceballos v. Shaughnessy, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583 (1957), the Court said:
352 U.S. at 603, 77 S.Ct. at 547, citing Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). Cf. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952). The test is whether the decree sought would "effectively grant the relief desired by expending itself on the * * * official who is before the court." Williams v. Fanning, 332 U.S. 490, 494, 68 S.Ct. 188, 189, 92 L.Ed. 95 (1947).
The Secretary of State was an indispensable party, and the claim was properly dismissed for failure to join him as a defendant. Wen Cheuk v. Esperdy, 178 F.Supp. 787 (S.D.N.Y.1959).
Appellants urge that even if we should hold that the Secretary was an indispensable party, we should remand the case to the district court to permit the Secretary to be joined as a defendant, since under the 1962 amendment to 28 U.S.C. § 1391, it would now be possible to sue the Secretary in the Southern District of New York. We decline to do so, because, as we demonstrate in Part II below, it is clear from the evidence that the claim is without foundation, and that if the Secretary were to be joined he would be entitled to summary judgment on the merits.
Appellants' second claim is that the denial by appellee of their applications for relief under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), was also the result of an unlawful predetermined policy against granting such relief to crewmen.
Section 243(h) provides:
The documentary evidence showed that in the fall of 1956, the Commissioner of Immigration issued an order staying final determination of the applications under Section 243(h) of the Yugoslav John Martinovich (not an appellant herein) and others similarly situated. The purpose of the order was "to allow the Service to collect reliable information" on the likelihood of physical persecution of aliens deported to Yugoslavia.
Diminich v. Esperdy, 299 F.2d 244, 246-247 (2d Cir. 1961), cert. denied, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed.2d 848 (1962).
Following the issuance of the Kale decision,
We find it unnecessary to repeat here the exhaustive exposition of the evidence contained in Judge Bryan's careful opinion dismissing the complaint. 209 F.Supp. 673. Suffice it to say that we completely agree with Judge Bryan's conclusion that appellants "wholly failed to adduce any proof which supports their claim" that their applications were prejudged pursuant to an unlawful policy to exclude crewmen from relief under Section 243(h). 209 F.Supp. at 678. It is true that along with the other evidence presented at the administrative hearings, appellants' status as former crewmen was considered by the inquiry officers in passing upon appellants' applications. But this was entirely proper, since an applicant's former position in Yugoslavia, and his manner of entry into this country are clearly relevant to a determination of the likelihood of his "physical persecution" if deported back to Yugoslavia.
The use of the Kale decision as a guide for handling the similar cases of appellants was not improper. We agree entirely with Judge Dimock's conclusion, adopted as well by Judge Bryan, that
195 F.Supp. at 493.
Appellants advanced no grounds here or in the district courts for separate or special treatment of the position of the one appellant who is a Latvian. We assume that the same considerations apply to him and we hold that there is likewise no evidence of the existence of an unlawful policy in his case.
"(a) The status of an alien who was admitted to the United States as a bona fide nonimmigrant may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, (3) an immigrant visa was immediately available to him at the time of his application, and (4) an immigrant visa is immediately available to him at the time his application is approved. A quota immigrant visa shall be considered immediately available for the purposes of this subsection only if the portion of the quota to which the alien is chargeable is undersubscribed by applicants registered on a consular waiting list."
8 U.S.C. § 1255(a).
Alternatively, appellants sought similar relief through a regulatory device known as pre-examination. 8 C.F.R. Part 235 (a), revoked, 24 Fed.Reg. 6477 (Aug. 12, 1959).
* * * * *
"(3) All the rest and remainder of said visas to aliens who are refugee-escapees as defined in subsection (c).
* * * * *
"(c) (1) For purposes of subsection (a), the term `refugee-escapee' means any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee (A) from any Communist, Communist-dominated, or Communist-occupied area, or (B) from any country within the general area of the Middle East, and who cannot return to such area, or to such country, on account of race, religion, or political opinion. * * *"
P.L. 85-316, 71 Stat. 639, 643.
23 Fed.Reg. 6543, 6545 (Aug. 23, 1958).
Inasmuch as none of the appellants had entered the United States as a "nonimmigrant visitor or student," appellee did not even forward their applications to the Office of Refugee and Migration Affairs (ORMA). Subsequent to the initiation of this suit, however, the regulations were amended to read as quoted in the opinion, and appellants' applications were forwarded to ORMA.
The question of whether these appellants would, in fact, be subjected to physical persecution if deported to Yugoslavia or Latvia is not before us on this appeal. Compare Zupicich v. Esperdy, 319 F.2d 773 (2d Cir. 1963); Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963); Diminich v. Esperdy, 299 F.2d 244 (2d Cir. 1961), cert. denied, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed.2d 848 (1962).