Opinion
No. 3:02-CV-0701-BF.
June 23, 2003.
MEMORANDUM OPINION AND ORDER
"Plaintiff's Motion for Summary Judgment," filed October 8, 2002, and "Defendants' . . . Cross-Motion for Summary Judgment," filed October 28, 2002, are before this Court. Having considered the arguments of the parties in connection with the evidence, Plaintiff's motion for summary judgment is hereby DENIED, and Defendants' cross-motion for summary judgment is hereby GRANTED.
I. Background
On April 5, 2002, the plaintiff, Jude Santos ("Santos"), filed the instant action against the Immigration and Naturalization Service ("INS") and the Acting Director of the Texas Service Center, Evelyn M. Upchurch. Santos seeks mandamus and declaratory relief from the defendants' denial of Santos' application for an F-1 visa [non-immigrant student]. (P.'s Am. Compl. at 1, 8.)
The pertinent facts of this case are not in dispute. In 1992, Santos legally entered the United States from the Philippines with an F-2 visa [non-immigrant, minor child of an F-1 visa holder] based on his father's status as an F-1 visa holder. (P.'s Br. at 2; D.s' Br. at 1-2.) On April 30, 1999, Santos obtained a change in status to an R-2 visa [non-immigrant, minor child of an R-1 visa holder] based on his father's change of status to an R-1 visa holder [non-immigrant, religious worker]. (P.'s Br. at 2; D.s' Br. at 2.) On August 24, 1999, Santos' father became a permanent resident alien as a special immigrant, religious worker. ( Id.) Accordingly, on November 18, 1999, Santos applied for an adjustment of status to permanent resident alien based on his father's status as such. (P.'s Br. at 2; D.s' Br. at 2; D.s' Ex. 1.) However, on February 12, 2000, Santos turned twenty-one years of age, which disqualified him from claiming any derivative status through his father. ( Id.) Therefore, on November 30, 2000, Santos' application for adjustment of status was denied, and Santos no longer enjoyed any legal status in the United States. ( Id.)
On January 15, 2001, Santos, who had remained in the United States as a college student, applied for an F-1 visa with the assistance of legal counsel. (P.'s Br. at 2-3; D.s' Br. at 2-3; D.s' Ex. 2.) Santos' application specifically invoked the provisions of 8 C.F.R. § 248.1(b), which allows INS to grant non-immigrant status, under certain circumstances, to an applicant whose legal status has expired. (D.s' Ex. 2.) On January 9, 2002, the defendants denied Santos' application for an F-1 visa, primarily on the grounds that Santos had failed to demonstrate an intent to depart the United States as is required for non-immigrant status. ( Id.)
On February 5, 2002, Santos filed a motion to reconsider the denial of his F-1 visa application. (P.'s Br. at 4; D.s' Br. at 4; D.s' Ex. 3.) In addition to submitting evidence of his intent to depart the United States, Santos again asked the defendants to exercise their discretion under 8 C.F.R. § 248.1(b). ( Id.) On March 20, 2002, without elaborating on the specific reasons for their previous denial of Santos' F-1 visa application, the defendants denied Santos' motion to reconsider because "the motion [had] failed to establish that the [previous] decision was based on an incorrect application of law or service policy." ( Id.) As noted above, Santos initiated the instant suit in the United States District Court for the Northern District of Texas on April 5, 2002.
Santos contends that the defendants, in denying Santos' F-1 visa application, failed to apply the analysis required by 8 C.F.R. § 248.1 (b) and that the defendants should be compelled to do so on remand. (P.'s Br. at 5-6.) Santos further contends that this failure by the defendants to follow their own regulations amounts to "an abuse of discretion that is arbitrary and capricious." ( Id. at 5.) The defendants, on the other hand, contend that their denial of Santos' F-1 visa application was not arbitrary, capricious, or an abuse of discretion. (D.s' Br. at 9.) Specifically, the defendants contend that they correctly denied Santos' F-1 visa application based on the evidence before them at the time of the denial. ( Id. at 7-9.)
The Court now turns to address the legal standards that will guide its analysis.
II. Legal Standards
Judicial review of an INS denial of a visa application is provided for under the Administrative Procedure Act. 5 U.S.C. § 702; Louisiana Philharmonic Orchestra v. INS, 44 F. Supp.2d 800, 802 (E.D. La. 1999). However, the denial of a visa application may only be reversed on judicial review if the denial was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2); National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 (5th Cir. 1989). Although this standard is highly deferential to the INS, the INS must still engage in "reasoned decision-making" in denying a visa application. National Hand Tool Corp., 889 F.2d at 1475 (quoting United States v. Garner, 767 F.2d 104, 116 (5th Cir. 1985)); Louisiana Philharmonic Orchestra, 44 F. Supp.2d at 802 (citing Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981)).
The INS must also follow its own regulations. See Panchevre v. United States Dep.'t of Justice-INS, 922 F.2d 1229, 1230 (5th Cir. 1991) (vacating an INS order because the INS had failed to follow its own regulations). Indeed, the failure of the INS to follow its own regulations may, under certain circumstances, constitute an abuse of discretion or a denial of due process. Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990) (noting that "[t]he failure of an agency to follow its own regulations is not . . . a per se denial of due process unless the regulation is required by the constitution or a statute."); Louisiana Philharmonic Orchestra, 44 F. Supp.2d at 803 (stating that "[a]n agency can abuse its discretion by failing to follow its own regulations.").
The Court now turns to address the merits of the motions.
III. Analysis
As noted above, Santos contends that the defendants, in denying Santos' F-1 visa application, failed to apply the analysis required by 8 C.F.R. § 248.1(b) and that the defendants should be compelled to do so on remand. (P.'s Br. at 5-6.) Santos further contends that this failure by the defendants to follow their own regulations amounts to "an abuse of discretion that is arbitrary and capricious." ( Id. at 5.) The Court disagrees.
The parties do not dispute that Santos lacked legal status in the United States at the time of his F-1 visa application. (P.'s Br. at 4; D.s' Br. at 5.) Nonetheless, INS regulations allow an alien whose legal status has expired to apply for a non-immigrant visa so long as certain conditions are demonstrated at the time of filing the visa application. 8 C.F.R. § 248.1(b). Specifically, the INS may grant such a visa application, at its discretion, where:
(1) The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the [INS] finds the delay commensurate with the circumstances;
(2) The alien has not otherwise violated his or her non-immigrant status;
(3) The alien remains a bona fide non-immigrant; and
(4) The alien is not the subject of removal proceedings under 8 C.F.R. part 240.8 C.F.R. § 248.1(b)(1)-(4).
In denying Santos' F-1 visa application, the defendants explained that "[a] non-immigrant is someone admitted to the U.S. temporarily for a specific purpose. Mr. Santos has shown that he has no intentions of departing the U.S." (D.s' Ex. 2.) Thus, the language of the denial clearly notified Santos that he had failed to demonstrate his status as a non-immigrant. Because 8 C.F.R. § 248.1(b)(3) requires the applicant to demonstrate "bona fide non-immigrant" status, the language of the denial sufficiently notified Santos of the defendants' reason for not exercising discretion under 8 C.F.R. § 248.1 (b). Santos demonstrated his understanding of the grounds for the denial when he submitted, in his motion to reconsider, evidence of his intent to depart the United States. Having found that Santos had failed to establish the "bona fide non-immigrant" requirement of 8 C.F.R. § 248.1(b)(3) at the time of his F-1 visa application, the defendants were not required to discuss whether Santos had established the remaining three requirements of 8 C.F.R. § 248.1(b). Nonetheless, the Court must now determine whether the defendants erred in determining that Santos had failed to demonstrate his non-immigrant status.
The evidence submitted with Santos' motion to reconsider consisted of Santos' affidavit statement that he intended to return to the Philippines after completing his college degree, as well as a 1996 statement from Yvonne M. LaFleur of the INS regarding a non-immigrant's intent to remain in the United States. (D.s' Ex. 3.) In denying Santos' motion to reconsider, the defendants noted that the "motion has failed to establish that the decision was based on an incorrect application of law or [INS] policy." ( Id.) See 8 C.F.R. § 103.5(a)(3) ("A motion to reconsider must . . . be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [INS] policy."). Furthermore, although the defendants considered Santos' new evidence on the motion to reconsider, they were not required to do so. (D.s' Ex. 3.) See 8 C.F.R. § 103.5(a)(3) ("A motion to reconsider a decision on an application . . . must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision."). See also 8 C.F.R. § 248.1 (b) (stating that entitlement to relief under 8 C.F.R. § 248.1(b) must be demonstrated at the time of filing). As such, the defendants did not err in declining to change their unfavorable decision in light of the evidence submitted with Santos' motion to reconsider.
As noted above, the defendants contend that the denial of Santos' F-1 visa application was not arbitrary, capricious, or an abuse of discretion. (D.s' Br. at 9.) Specifically, the defendants contend that they correctly denied Santos' F-1 visa application based on the evidence before them at the time of the denial. ( Id. at 7-9.) The Court agrees.
Santos entirely failed to submit any evidence in his F-1 visa application of his intent to depart the United States. (D.s' Ex. 2.) Santos instead submitted a detailed affidavit from his father, in which his father detailed the hardships Santos would suffer if he were required to return to the Philippines. (D.s' Ex. 2.) Specifically, the father's affidavit explained that, if required to return to the Philippines, Santos would be "isolated" from his immediate family in the United States, would have no means of financial support, would have little familiarity with the Philippines or with the native language, would have few educational opportunities, and would be required to abandon a full-tuition scholarship at the University of Texas at Dallas. ( Id.) Thus, based on the evidence before the defendants at the time of the denial of Santos' F-1 visa application, the defendants could have reasonably concluded that Santos had no intention of departing the United States and was therefore not a "bona fide non-immigrant" for purposes of 8 C.F.R. § 248.1(b)(3). As such, the Court cannot conclude that the denial of Santos' F-1 visa application was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2); National Hand Tool Corp., 889 F.2d at 1475.
IV. Conclusion
For the foregoing reasons, Plaintiff's motion for summary judgment is DENIED, and Defendants' cross-motion for summary judgment is GRANTED.