Patel’s challenge against the U.S. Consulate: Patel v. Reno 134 F.3d 929 C.A.9

Patel’s challenge against the U.S. Consulate: Patel v. Reno 134 F.3d 929 C.A.9

 

United States Court of Appeals,

Ninth Circuit.

PATEL, Jyotika Patel, Mohanbhai, Petitioners, v. Janet RENO, Attorney General of the United States, et al., Respondents.

No. 96-55359.

July 5, 1996.

Petitioners’ Brief in Support of Notice of Appeal

Law Offices of Steven D. Karp, Steven D. Karp, Michael J. Carrozzo, 9107 Wilshire Boulevard, Suite 750, Beverly Hills, California 90210, Telephone: (310) 275-2429, Attorneys for Petitioners.
TABLE OF CONTENTS

Certification as to Interested Parties … 2 Brief Format Certification … 3 Table of Authorities … 5 Statement of the Issues … 6 Statement of the Case … 7 Basis for Subject Matter Jurisdiction in the District Court Basis for Jurisdiction in the Court of Appeals Timeliness Preliminary Statement … 9 Statement of Facts … 10 Argument … 12 A. The District Court Judge Failed to Render a Clear Reasoned Decision in this matter … 13 1. The District Court Judge did not apply the correct legal standard … 13 2. The District Court did not consider the violation of the Petitioners’ constitutional rights … 21 3. The District Court Judge Erred in finding that the actions Respondents actions were reasonable … 23 4.The written decision and the oral decision by the District Court Judge are inconsistent … 29 B. The District Court failure to rule on the Motion to Strike filed by Petitioner constitutes reversible error … 32 IV. Conclusion … 33 Copy of Advisement to Counsel of Grant of Extension Proof of Service

Note: Table of Contents page numbers missing in original document

 

TABLE OF AUTHORITIES

CASES Fiallo v. Bell, 430 U.S. 787 (1977) Mulligan v. Schultz, 848 F.2d 655 (5th Cir. 1988) STATUTES 22 C.F.R. 40.6 22 CFR 41.11 22 C.F.R 42.81 8 U.S.C 1182, INA Section 212. 8 U.S.C. 1184(b), INA Section 214(b) 8 U.S.C. 1201, INA Section 221 8 U.S.C. 1251, INA Section 241 8 U.S.C. 1252, INA Section 242 8 U.S.C. 1255, INA Section 245 8 U.S.C. 1256, INA Section 246 8 U.S.C. Section 1451, INA Section 340 8Rule 56 (e) of the Federal Rules of Civil Procedure

Note: Table of Authorities page numbers missing in original document

 

STATEMENT OF THE ISSUES

 

  1. Whether the District Court Judge Applied the correct Legal Standard?
  2. Whether the District Court properly considered the violation of the Petitioner’s Constitutional rights?
  3. Whether the District Court Judge Erred in Finding that Respondents were Reasonable?
  4. Whether the written decision and the oral decision by the District Court Judge are inconsistent?
  5. Whether the District Court failed to properly rule on the Motion to Strike filed by Petitioner?

STATEMENT OF THE CASE

  1. Basis for Subject Matter Jurisdiction in the District Court

The District Court had subject matter jurisdiction over the Writ of Mandamus pursuant to 28 USC 1329 and 28 USC 1331.

  1. Basis for Jurisdiction in the Court of Appeals

This Court has jurisdiction to review the District Court’s final order pursuant to 28 USC 1291.

  1. Timeliness

The Judgment by the District Court was entered on February 5, 1996. The notice of appeal was timely filed on March 3, 1996.

 

STATEMENT OF RELATED CASES

 

The undersigned counsel of record for the Petitioner certifies upon information and belief that there are no related cases presently pending before the United States Court of Appeals for the Ninth Circuit.

  1. PRELIMINARY STATEMENT

On February 5, 1996 United states Federal Court Judge, the Honorable Harry L. Hupp denied Petitioners’ motion for summary judgment and granted Respondents’ motion for summary judgment thereby dismissing Petitioners’ Writ of Mandamus. The District Court Judge erred in this decision on several accounts. The Petitioner’s Writ of Mandamus solely and specifically requested that the District Court mandate the United States Consul in Bombay, India to act on the immigrant visas pending at the United States Consul in Bombay, India and render a final determination setting forth the legal and factual basis for that determination. The District Court Judge’s decision in this matter misapplied the applicable statutes, regulations and case law. The District Court failed to clearly and specifically state the reasons for his decision or the underlying rationale. In addition the District Court Judge failed to consider or rule on the Petitioners’ timely filed motion to strike the declaration on which Respondents’ substantially relied. Therefore, as discussed in more detail below the Petitioners request that the Ninth Circuit reverse the lower Court’s decision and grant the Petitioners’ motion for summary. judgment and deny the Respondents’ motion for summary judgment. In the alternative the Petitioners request that the Ninth Circuit remand the case to the District Court for further consider in accordance with this Court’s order.

  1. STATEMENT OF FACTS

The Petitioner, Jyotika Patel, a native and citizen of India, is married to Petitioner, Mohanbhai Patel, a naturalized United States citizen. The Patels have two minor unmarried children. In October 1988, Mr. Patel filed a Petition for Alien Relative, Form-130, on behalf of Mrs. Patel and their two children. The petition was approved by the Respondent Immigration & Naturalization Service (INS) and Mrs. Patel and the children were accorded an immigrant visa interview in November 1989 at the office of the United States Consulate General in Bombay, India. The immigrant visas were not granted but rather the approved immigrant visa petitions were returned to the INS in Los Angeles for investigation. Prior to the institution of this Mandamus complaint the INS refused or failed to either revalidate or revoke the visa petition. The Petitioner filed this initial mandamus complaint in November 1993, seeking an order to compel the INS to act on the Petition.

Pursuant to a stipulation between Counsel for both Petitioners and Respondents the mandamus action was dismissed without prejudice since the Respondents asserted that they had in effect revalidated the Petitioners’ petition and returned it to the United States Consulate for action on the immigrant visa application. This stipulation was entered into specifically to have the effect of “mooting the relief requested in the Complaint”. However, the immigrant visas still were not acted on because the INS incorrectly and intentionally informed the Consulate that they had begun denaturalization proceedings against Mr. Patel, when in fact no denaturalization proceedings had been instituted. The United States Consulate then refused to act on the pending immigrant visa applications specifically and solely because the United States Consulate believed erroneously, that denaturalization proceedings had been instituted. The United States Consulate at Bombay, India to date has not rendered a final determination setting forth legal and factual basis and Mr. Patel’s wife and children are still in India awaiting a determination as to their authority to immigrate to the United States, despite the fact that nearly 7 years has passed since the immigrant visa interview and that they have established statutory eligibility, pursuant to 8 U.S.C. Section 1151 and 8 U.S.C. Section 1154. Therefore, the purpose of the stipulation was negated and the Petitioners are left with the same underlying cause of action, i.e. the Respondents’ refusal or failure to render a decision on Petitioners’ right to immigrate to the United States. The Petitioners then filed a motion to re-open the mandamus action. The motion was granted and this action was prosecuted in District Court. On February 5, 1996 the Respondents’ motion for summary judgment was granted and the Petitioners’ was denied thereby dismissing the matter. The Petitioner timely filed a notice of appeal. This brief is filed in support of the notice of appeal.

III. ARGUMENT A. The District Court Judge Failed to Render a Clear Reasoned Decision in this matter.

The record is entirely unclear as to the reasoning for the District Court’s ruling. The Honorable District Court Judge Hupp issued a tentative decision which stated reasons for the decision. However, during the hearing on the matter the District Judge appeared to change the rationale for his decision. The result of the tentative decision, which the Judge adopted as the decision in this case, and the oral comments leads to the inexplicable conclusion that the District Court committed reversible and prejudicial error as set forth in detail below.

Although the District Court Judge properly defined the issue that was presented, he applied the wrong legal standard. The Judge correctly pointed out that the Petitioners were requesting that the Court mandate the Consul in Bombay to make a final determination on the immigrant visas that have been pending since 1989. The Judge specifically pointed out that Respondents’ argument that the Petitioner was seeking that the Judge order the immigrant visa application approved as opposed to acted on was incorrect. The Respondents also argued and continue to argue that the denaturalization proceedings were instituted in 1992. The Judge correctly held that the denaturalization action was not instituted until October 1995 as specifically stated by statute. The District Judge further discussed the fact that the government was “possibly … unreasonable” in its delay of investigating and acting on this case. ( Decision p. 2 [CR 46], Transcripts p. 23 [CR 49]) The Judge stated that if the government wanted to investigate the Petitioner they should have done so during the Petitioners’ application for permanent residence or during the Petitioner’s application for citizenship or before approving the immigrant visa petitions. ( Decision p. 2 [CR 46])

After having enumerated the egregious conduct of the government the Judge ruled that the Consulate was now justified in not acting on the immigrant visas because the denaturalization case was at the present time pending in federal court. The Judge further held that the Consulate’s failure to act was reasonable now that the denaturalization was pending. There are several distinct and serious errors in the Judge’s decision as explained below.

  1. The District Court Judge Did Not Apply the Correct Legal Standard.

The District Judge created a reasonableness standard in the law where one does not exist. The authority to grant an immigrant visa is not discretionary. The District Court Judge in holding that the Consulate’s failure to act was reasonable also held that the issuance of immigrant visa is discretionary. In fact Respondents’ counsel stated to the Judge during the hearing on the motion that the “duty [to issue immigrant visas] is discretionary.” ( Transcripts p. 22 [CR 49]) As throughout this case the Respondents misrepresented the applicable legal standards to be continuing prejudice of the Petitioners. It is clearly not the case that immigrant visas are discretionary. The issuance of immigrant visas by the United States consulate is not discretionary. There is no case law, statute or regulation that is cited or exists that authorizes the Consul simply not to act on an immigrant visa application. In fact 22 C.F.R Section 42.81 specifically and clearly states that the Consul must act as follows:

(a) Issuance or refusal mandatory. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of INA and the implementing regulations, the consular officer shall either issue or refuse the visa. Every refusal shall be in conformance with the provisions of 22 C.F.R. 40.6.

22 C.F.R 42.81

Thus, it is clear that the Consul is bound by it’s own regulations to act on the immigrant visa applications. The procedures for refusal are specifically provided for in 22 C.F.R 42.81 (b). The Consulate has not complied with these procedures and has clearly stated that no decision has been made regarding the visa applications. Moreover, 22 C.F.R. 40.6 states that refusal can only be based on the ineligibility requirements of 8 U.S.C 1182, INA Section 212 as discussed in detail below.

There is no case law, statute or regulation that is cited or exists that holds that the District Court cannot order the Consul to act on an immigrant visa application. The Respondents as pointed out above have continued to misstate the issue by alleging that the Petitioners seek an order mandating the Court to grant the immigrant visas. However, the Petitioners only requested that the Court order the Consul to act on and make a legal determination on the immigrant visas as required by Respondents’ own regulations. Petitioners did not contend that the Federal Court need decide whether it has authority or not to review the determination of the Respondents regarding the immigrant visas. Such a ruling is not necessary or ripe for consideration since Respondent’s have not rendered a final determination setting forth legal grounds for that determination.

Furthermore, the case at bar pertains to immigrant visas, which are not discretionary. The Immigration and Nationality Act specifically prescribes that nonimmigrant visas are discretionary and immigrant visas are not discretionary. Pursuant to 8 U.S.C. 1184(b), INA Section 214(b) and 22 CFR 41.11, nonimmigrant visas are subject to discretionary factors. However, pursuant to 8 U.S.C. 1201, INA Section 221 and 22 C.F.R 40.6, immigrant visas have to do with inadmissibility not discretion.

A visa can be refused only upon a ground specifically set out in the law or implementing regulations.

C.F.R. 40.6 (emphasis added)

The grounds for inadmissibility/refusal of an immigrant visa are clearly stated in INA Section 212. Section 212 specifically prescribes all of the grounds for inadmissibility such as 1) health related grounds 2) criminal and related grounds 3) reasons of national security 4) public charge. This list is complete and exclusive. The Respondents cannot lawfully create a ground of inadmissibility that is not contained in the appropriate statute enacted by Congress and which it has a duty to uphold. The Respondents have never even alleged inadmissibility under Section 212. Moreover, Mrs. Patel and her children are not ineligible under any grounds.

Additionally, Congress has provided for two specific formats to receive permanent residence either through adjustment of status in the United States or to immigrate from outside the United States through the United States Consulate, as herein. The Congress has specifically legislated in 8 U.S.C. 1255, INA Section 245 that adjustment of status is discretionary.

The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe…

8 U.S.C. 1255, INA Section 245

However, the Congress has pointedly not provided for such discretion in regard to immigrant visas. Therefore, Congress did not intend for immigrant visas to be subject to Consular discretion but rather strict eligibility requirements as discussed above. If Congress had intended to make immigrant visas discretionary, language to that effect would have been provided. Since no such language can be found in the INA under the theory of statutory construction, it must be concluded that Congress did not intend to make immigrant visas subject to discretion, and purposely omitted language authorizing the exercise of discretion.

Furthermore, the Courts have already held that the Consulate’s refusal to act on or process visa applications is not subject to discretion and should be reviewed by the Federal Courts. In Mulligan v. Schultz, 848 F.2d 655 (5th Cir. 1988), the court held that it did have jurisdiction over suit by 62 aliens challenging decisions of the United States consular officers not to accept their applications for immigrant visas. The Court held that Consulars officers are subject to reviewability as follows:

In this case, the appellants are not challenging the discretion of consuls in refusing to process applications for non-preference visas… Rather, they are challenging the authority…

848 F.2d 655 at 657. (emphasis added)

Therefore, when there is an issue as to the authority of the Consul’s decision then the district court may review the determination. This is the same issue presented in the case at bar. The issue is the Respondent’s apparent assertion that the Consul has the authority never to act on the immigrant visas and never render a decision without benefit of any judicial review whatsoever; and the District Court’s apparent holding that the Respondents need not act until denaturalization proceedings are completed based on a “basis in reason” standard and that non-action is an action “in a sense” as discussed below.

Furthermore, the case at bar does not involve the Consul’s action but rather the Consul’s inaction. As such there is no bar whatsoever in statute or case law to the District Court’s jurisdiction to mandate the Consul to act on the immigrant visas regardless of the District Judge’s holding regarding the vague, ambiguous and unauthorized use of a “basis in reason” standard.

Perhaps the District Court Judge’s most egregious error is his reliance on two legal standards that he seems to have created out of whole cloth, and without any basis in legal authority. First, the District Court Judge stated that the Consul had a “basis in reason” for failing to act on the immigrant visa applications. There is no such standard in any statute, regulation or case law. The District Court Judge thereby created this standard. Not only is there no precedent or legal foundation for the creation of such a standard but the standard is vague and ambiguous. This “basis in reason” standard is undefinable as it is clearly something less than a “reasonableness” standard in that it is apparently only based in reason. There is no explanation of this standard nor precedent for such a standard. Additionally this “basis in reason” standard is in direct contradiction to the Congressionally mandated duty of the Consular office to render a determination, an action, based on 22 CFR. 40.6. Nowhere has Congress enlarge the duty of the Consular officer to not act if there is a “basis in reason”. The District Court has in effect created a discretionary standard where none exits. It must be emphasized again that the Consul has no discretion to decide not to make a decision based on the controlling regulation regarding the exclusive grounds of inadmissibility set forth by Congress. With all due respect, the District Court Judge does not possess the lawful authority to create by judicial fiat an additional ground of inadmissibility to those specifically enacted by Congress. The Judge’s reliance on this inappropriate standard is at the crux of this matter and therefore constitutes prejudicial and reversible error.

Furthermore, the Judge’s reliance on this standard fails to consider the egregious conduct of the Respondents. Even under the Judge’s standard, the conduct on the part of the Respondents is not “based in reason.” The Respondents intentionally failed to revalidate or revoke the immigrant visa petition filed in 1988 and referred by the consulate to the INS in 1989 until Petitioner filed the initial mandamus action, the Respondents continue to refuse to act on the immigrant visa application after 7 years of investigation, the Respondents failed to comply with the terms of the stipulation previously mentioned, the Respondents continue to argue that denaturalization proceedings were instituted in 1992 when it is clear they were instituted in 1995, the Respondents only filed the denaturalization complaint in retaliation for the Petitioners reopening of the Mandamus complaint, and the Respondents’ have consistently maintained the position that they need never act on the immigrant visas unless ordered by the Court. The fact that Respondent have recently filed this denaturalization complaint is not or “reasonable” basis for now claiming that they can again refuse to act on this immigrant visa applications. The Respondent’s “reasonableness” standard, have abused this authority due to the extreme length of time that they have refused to act prior to the institution of the denaturalization complaint and due to the INS affirmative misconduct in intentionally misrepresenting to the consulate that denaturalization proceedings had been instituted specifically to delay and induce the Consul not to act. Clearly the Respondent should not be rewarded for this egregious and prejudicial conduct. Therefore, the Respondents do not even have a “basis in reason” for their conduct.

Second, the District Court Judge states that the Consulate did “in a sense” act on the immigrant visa applications. This standard is also found no-where in the statutes, regulations or case law. It appears the Judge without authority created this standard as well. The “in a sense” standard is clearly erroneous. Either the Consul acted or it did not act. There is no acting “in a sense.” This use of the term “actions in sense” is vague and imprecise. It is entirely unclear from a legal stand-point when a finding of “acting in sense” applies. Despite the District Court’s tortured reasoning and use of extremely imprecise, and unquantifiable terminology as a rationale for somehow holding that the Respondent need not act further on the pending immigrant visa applications, the fact remains that Congress has mandated that the Consular official shall only refuse or deny the immigrant visa applications on exclusive and enumerated grounds, and not on “action in a sense”. The District Court Judge’s reliance on this illogical and unsupported principle therefore constitutes reversible error, and results in direct prejudice to the Petitioners in that their immigrant visa application will languish further than the present 7 years.

The language used by the District Court Judge as cited above is imprecise, ambiguous and not based on any legal principles or standards. Therefore, the District Court failed to consider or base its decision on the legal authority as cited above. Clearly the Judge committed error by failing to properly address the issues presented and follow the correct legal standards. Therefore, the prejudicial error committed by the Court requires that the decision be reversed.

  1. The District Court Judge Did Not Consider the Violation of Petitioner’s Constitutional Rights.

The District Court Judge failed to address the Petitioners’ arguments relative to the violation of the Petitioner’s Constitutional rights. The Supreme Court in Fiallo v. Bell, 430 U.S. 787 (1977) held that Consular actions can also be challenged when there are constitutional infirmities. In the present case the Consul has refused to act on the immigrant visas and indicates that they are not going to act. Furthermore, the Respondents’ position as consistently maintained is that the Respondents never have to act, never have to explain their refusal to act, never have to justify their actions or inactions through citation to statutory or regulatory authorization, and the aggrieved party is without remedy, and specifically a federal court has no jurisdiction to hold otherwise. A statutory scheme that allows the Consul not to act indefinitely is patently unfair and a violation of due process and equal protection.

Mr. Patel’s due process rights have been denied by a statute that according to the Respondents’ interpretation, allows the government not to act on Mr. Patel’s right to petition for his family. This right has been taken away without notice, opportunity to confront witness or present evidence. There is nothing more offensive to the due process rights of individuals than to have citizenship rights constructively taken away without the rights and protections guaranteed by the Constitution. Therefore, the statute is clearly subject to review on due process grounds.

The statute is also subject to review based on the equal protection grounds on the basis that Mr. Patel’s wife and children’s immigrant visa applications have not been acted upon while other applications have been determined. The Respondents appear to be differentiating among applicants for immigrant visas, applicants for adjustment of status, applicants whose visa petitions have been investigated, among others, relative to their right to obtain a final determination or decision based on legal and statutory grounds. This failure to act on these applications while others are acted upon is a violation of the equal protection clause. The equal protection clause is a constitutional protection to ensure that all laws enacted in the United States treat all persons equally unless there is at a minimum a rational basis to regard certain categories of people differently. If the Consul’s conduct is lawful under the statute, which Petitioners strenuously dispute, then the statute violates the equal protection clause.

Therefore, the Court failed to consider to review the actions of the Consular Officers violation of the Petitioner’s constitutional rights. This failure to properly review this issue constitutes reversible error and requires that this Court overturn the lower Court’s decision.

  1. The Judge Erred in Finding that the Actions of the Respondents Were Reasonable

Despite the fact that as unambiguously and clearly set forth in statute and regulations the issuance of an immigrant visa is not discretionary and despite the fact that there is no authority whatsoever for a finding by the District Court that a consulate can refuse to act based on some undefined, vague reasonableness standard, the Respondents’ conduct was not reasonable contrary to the Judge’s holding. The District Court Judge’s decision accepted the Respondents’ position that the Consul need act only when it alone decides it is ready, regardless of the length of time including an approximate 8 year delay and separation of a United States citizen from spouse and children. This position is one that is shocking to the conscience, and under any test unreasonable and injudicious. The Judge’s position appears to be that the Consulate need only act once the denaturalization action has been completed. This Court as a court of equity has the jurisdiction and authority to grant relief to the Petitioners on an equitable basis. The Judge’s decision is inappropriate at best and patently unfair.

First, the District Court Judge failed to consider that there is no assurance whatsoever that the denaturalization action will result in the denaturalization of Mr. Patel. Mr. Patel certainly and obviously cannot be determined to be “guilty or liable” merely based on Respondents’ unproven allegations. The obvious purpose of a hearing on this matter, subject to all the due process protection afforded by Federal Rules, statutes and the Constitution cannot be abrogated by Defendants’ assertion alone. Despite Respondents’ apparent allegations to the contrary, the Federal Court is the arbiter of this issue and not the United States Attorney’s office.

Second, the District Court Judge did not consider that even if the District Court grants the Government’s denaturalization complaint, that order is not a final order. (It must be emphasized that there is no reason to assume a likelihood of success on the merits.) Mr. Patel will have considerable appellate rights which may take years to litigate. In the meantime Mr. Patel is still a United States citizen pending a final decision by the Federal Courts of Appeals, including potentially the United State Supreme Court. Again it must be emphasized that the Respondents’ position seems to be that despite the potential years of litigation, the Petitioner loses his rights as a United States citizen including his statutory right to petition for his wife and children merely and specifically because the Respondents started an investigation into Mr. Patel’s naturalization. This position is held despite the fact that there is no statute, regulation or case law that supports it, and despite the fact that it abrogates the statutory grounds of inadmissibility set forth by Congress. The absurdity of the Judge’s position is made clear by a simple extension of his decision. The Respondents, by their refusal to act on the immigrant visas, have taken away Mr. Patel’s right as a United States citizen to petition for an alien relative without any hearing or due process rights. However, under this theory what is to prevent the government from taking away Mr. Patel’s right to vote or his United States passport or any other right of citizenship without due process merely because the government has started an investigation into a person’s naturalization. Respondents’ position and the District Court’s decision notwithstanding, Mr. Patel is presently a citizen of the United States and as such he is entitled to enjoy all the rights of citizenship that others enjoy, including the right to vote, carry a United States passport, and petition for his wife and children, among other rights. Clearly, the taking of Mr. Patel’s right to petition for his alien relatives by refusing to act violates the principles of the statutes, regulations and Constitution of the United States. This analogy further points out that the Respondents have attempted to circumvent the law by refusing to act within the applicable statutes and regulations.

Furthermore, the Judge failed to consider that even if Mr. Patel’s naturalization is ultimately revoked and all his appellate rights have been exhausted, he will still have his permanent resident status and has the statutory right to be present in deportation proceedings in Immigration Court. If Mr. Patel faces deportation proceedings he will still have various forms of relief from deportation pursuant to 8 U.S.C. 1182, INA Section 212 and 8 U.S.C. 1251, INA Section 241 available; and additional appeals if his claims of relief are denied by the Immigration Court, including appeal to the Board of Immigration Appeals and a Petition for Review to the United States Circuit Court of Appeals. Following the Court’s decision, during this entire period of time which may last decades Mr. Patel’s spouse and children will remain outside the United States unable to immigrate and reside with their lawfully admitted husband and father respectively. This absurd result will exist despite the fact that Mr. Patel even as a lawful permanent resident is legally eligible to petition for his wife and children to enter the United States. Again, Mr. Patel in no way concedes that he should in fact be denaturalized or be found deportable from the United States.

As a court of equity this Court can recognize the weighing and balancing of factors. In this case the Respondents have circumvented the statutory process in favor of not acting on the immigrant visa applications. The Respondents have remedies available to them if the immigrant visas were acted upon and approved and even assuming that Mr. Patel was ultimately denaturalized. The statutory remedy would be that the Government would then be able to institute revocation proceedings against the beneficiaries permanent resident status. Pursuant to 8 U.S.C. 1256, INA Section 246, the Attorney General may rescind permanent residence status after notice and the opportunity to present evidence as well as other due process protections. Thus, the Congress has specified a statutory scheme to follow either in deportation proceedings pursuant to 8 U.S.C. 1252, INA Section 242 or 8 U.S.C. 1256, INA Section 246 to revoke permanent resident status. The Respondents are attempting to unlawfully circumvent the only proper and lawful procedure mandated by Congress. On the other hand, Mr. Patel and his family have faced an irreparable wrong by being separated unlawfully. Mr. Patel has been separated from his family for years unable to reside with his immediate family in the United States despite the fact that he has been a naturalized citizen since 1988. The years Mr. Patel and his spouse and children have missed together can never be regained. The Patels also face additional and irreparable future harm if this Court does not mandate that the Respondents act on the immigrant visas. Additional separation of the nuclear family unit, husband, wife and children, can only needlessly and unlawfully result in additional and compounded suffering.

Therefore, the District Court decision failed to consider that given the fact that the Government has considerable statutory avenues of redress if the visas are acted upon and then Mr. Patel is denaturalized and the Patels have no other remedies available to them should the Respondents continue to refuse to act, it is inappropriate, patently unfair and a violation of due process for the Respondents to hold Mrs. Patel and her children’s immigrant visa applications in abeyance indefinitely. (It is uncontroverted that the United States Consul’s have sole authority over the issuance of visas.) Additionally, it must be noted that there is no statute, regulation or case law cited that supports the Respondents’ position that the government can constitutionally negate the Petitioner’s United States citizen statutory rights indefinitely pending an undeterminable and unlitigated result.

Furthermore, as the Judge conceded the Respondents have had substantial time and opportunity to review Mr. Patel’s citizenship. The INS reviewed and approved Mr. Patel’s permanent resident status. The INS reviewed and approved Mr. Patel’s citizenship application. The INS reviewed and approved the petition filed by Mr. Patel as a United States citizen on behalf of his wife and children. The INS and the Consulate both investigated the matter. The investigation was concluded and the INS refused to send the petition back to the Consulate until Petitioners filed the initial Mandamus complaint. The Respondents stipulated to send the petitions back to the Consulate. However, in contravention to the intent of the stipulation the INS misinformed the Consulate of the institution of denaturalization proceedings thereby inducing the Consulate not to act on the pending immigrant visa applications. The visa applications were still not acted on by the Consulate after this extreme delay based on the INS misinformation. The INS did not institute denaturalization proceedings until after this Mandamus action was reopened, and in fact in retaliation for its prosecution. The Respondents still continue not to act on the visa applications and indicate they will not act. Clearly the Respondents’ have made abundantly clear their refusal to act on this matter, unless a Federal Court ruling is anticipated. Therefore, due to the extreme and intentional delay by the Respondents, the government should be barred by the doctrine of laches from now claiming that even more time is necessary for them to act on their denaturalization complaint before they complete their action on the pending immigrant visa applications. The Respondents should further be barred from prevailing in this matter under the doctrine of unclean hands due to their disingenuous and underhanded attempts to delay the immigrant visa applications, as set forth above. The Respondent so for successful underhanded efforts to delay rendering a lawful decision should not be condoned or rewarded by a further indeterminate delay due to the “reasonableness” of the Respondents’ position.

The fact remains that Mr. Patel is a United States citizen and has the statutory right to petition for his spouse and children. The Defendants have contravened their own stated goals of “supporting the reunification of U. S. Citizens with their spouses and minor children” as reaffirmed recently by INS Commissioner Ms. Meissner.

By virtue of the District Court Judge’s decision the District Court in effect accepts and condones the Respondents’ conduct in this matter. The Respondents’ conduct of unilaterally and without notice, without evidence, and without accountability deciding that Mr. Patel has done some wrong and therefore stopping the normal and legal immigration process to keep Mr. Patel separated from his family for approximately 8 years should not be sustained. The District Court Judge improperly failed to consider the arguments and equities presented and cited above which constitutes reversible error. This prejudicial error requires that the Ninth Circuit reverse the District Court’s decision.

  1. The Written Decision and the Oral Decision by the District Court Judge are Inconsistent.

The written decision by the Judge and the oral decision rendered at the hearing are inconsistent. The written decision holds that the Consulate was not required to act because there was justification. The transcripts of the oral decision reflect that the Judge’s decision was based on the conclusion that the Consulate acted “in the sense” that the consulate will not act until a decision on the denaturalization case was made. Obviously, this reasoning is erroneous and devoid of logic. It is antithetical to conclude that the decision not to act is an actual decision or action.

The reasoning is clearly incorrect and inconsistent as established by the case law set forth herein and on the Judge’s own comments during the hearing of this matter.

Nevertheless, its does make explicable what the consul in Bombay is doing. They’re saying that [the denaturalization case] has to be resolved. What they assumed was then pending and what is now pending, a denaturalization period, has to be resolved before they will consider granting the application. In the meantime, they say in the letter to you in I guess it was July ’94, the visas are quote “refused.” That’s a sort of an action, in a sense.

( Transcripts P. 4 [CR 49])

First, this statement by the Judge is absolutely legally incorrect. As discussed further above the refusal of the Consul to act is not an action. Clearly, the refusal of the Consulate is a failure to act on the pending immigrant visa petitions. As discussed above the Consulate has had more than sufficient time to review this case regardless of the denaturalization case. The Consulate therefore has failed to act on the immigrant visa applications and as such its inaction is subject to mandamus.

Second, the District Court’s oral decision is vastly different from the Court’s tentative ruling which the Court affirmed as the Court’s final ruling. Contrary to the Judge’s oral statements that the refusal was an action by the Consulate, the Judge in his tentative ruling held that the Consulate had not acted as follows:

There is a basis in reason for the non-action on the final decision on issuing the visas, and that decision may not be controlled by action of this Court.

( Decision P. 2 [CR 46])

However, one of the Judge’s only comments regarding the discretionary issue at the hearing is as follows:

I can see it can be argued both ways because the consul has not said this is a final action.

( Transcripts p. 23 [CR49])

The records shows that the Judge was not clear as to whether he concluded that the Consul had acted or not. It is difficult to ascertain from the transcript and the written decision the Court’s actual rationale for the decision. However, it is clear that the District Court Judge was confused or at a minimum unclear in explaining with regard to the reasons for his decision. The Judge has contradicted and convoluted his written decision with his statements made at the hearing. The issue identified by the Judge is whether the Consulate acted or did not act and the record indicates that the Judge makes the distinct and opposed conclusions regarding that issue. Therefore, should this court believe that a further ruling is necessary by the District Court, the Petitioners contend that this case must be remanded for the minimum purpose of clarifying the District Court’s decision. However, as argued herein the case law, statutes and regulations are clear that Consulate has a duty to act by either approving or denying the visa applications. The Consulate does not have the authority to refuse to act on immigrant visas.

Therefore, as cited above the District Court has not made a complete and clear record. The Ninth Circuit should at a minimum remand the case to the District Court for a clarification of the decision. However, the errors presented are so egregious that the Ninth Circuit should reverse the District Court’s decision and grant the Petitioners’ motion for summary judgment mandating that the Consulate make a final determination on the immigrant visa applications, as set forth by statute and regulation.

  1. The District Court Failure to Rule on the Motion to Strike filed by Petitioner is Reversible Error.

The District Court did not consider or rule on the Petitioners’ motion to strike. This motion was timely made and filed by Petitioners and never addressed by the District Court. The motion to strike is central to this case as the Respondents’ motion for summary judgment was substantially based on the declaration subject to the motion to strike. The declaration by Respondents’ Counsel recites facts and conclusions of law which were the basis for the Respondents’ statement of Uncontroverted Facts. The Declaration was almost entirely inappropriate as a declaration may only contain statements which the declarant can testify to in court. The Declaration contained factually statements to which the declarant had no personal knowledge and conclusions of law that were improper. Therefore., at a minimum the case must be remanded to district court in order for a ruling to be made on the instant motion to strike and subsequently the merits of the summary judgments motions ruled on in light of the District Court’s decision on the motion to strike.

As stated in the Petitioners’ motion to strike the declaration did not comply with Rule 56 (e) of the Federal Rules of Civil Procedure in that said declaration was not made upon personal knowledge.

The declaration contains information in paragraphs 2 through 19 that Ms. Komoroski was not competent to testify in Court pursuant to the Federal Rules of Civil Procedure and Federal Rules of Evidence. Therefore, paragraphs 2 through 19 should have been disallowed for consideration of the summary judgment motions by the district Court. The failure of the District Court to strike these paragraphs resulted in prejudicial error in that the Respondents’ Motion was granted based on the improper statements made in the declaration. Furthermore, it is clearly egregious and prejudicial that the Judge did not even rule on the Petitioners’ Motion to Strike.

Therefore, the case should be remanded to the District Court at a minimum solely on this basis.

  1. CONCLUSION

The District Court has improperly accepted the Respondents’ argument which misapplied the facts and law. The Petitioners have consistently and continuously only requested that the Consulate act on the immigrant visas. The Respondents have not lawfully acted on the immigrant visas and the Petitioners have been forced to seek the only redress available that is Federal Court interventions. The District Court condoned the Respondents’ position that the Respondents’ may refuse to act forever with impunity. First, the Judge erred by concluding that the Respondents’ failure to act was a excusable because it had a “basis in reason”. Second, the Judge erred by failing to apply the correct legal standards. Third, the Judge erred by failing to provided a clear consistent and well-reasoned decision. Forth, the Judge erred by failing to rule on the Petitioners’ properly filed motion to strike.

Therefore, the Petitioners’ motion for summary judgment should have been granted and the Respondents/Defendants’ motion for summary judgment should have been denied.

PATEL, Jyotika Patel, Mohanbhai, Petitioners, v. Janet RENO, Attorney General of the United States, et al., Respondents. 1996 WL 33468720 (C.A.9) (Appellate Brief) Briefs and Other Related Documents (Back to top)1996 WL 33468722 (Appellate Brief) Appellants’ Reply Brief to Appellees’ Brief (Oct. 08, 1996) Original Image of this Document (PDF)1996 WL 33468721 (Appellate Brief) Appellees’ Brief (Sep. 06, 1996) Original Image of this Document (PDF) END OF DOCUMENT
 

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