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SHODEKE v. AG OF THE UNITED STATES

March 25, 1975

FUNMILAYO SHODEKE and FOLARIN SHODEKE, Plaintiffs,
v.
THE ATTORNEY GENERAL OF THE UNITED STATES, Defendant



The opinion of the court was delivered by: GASCH

 This matter is before the Court on plaintiffs' motion for a temporary restraining order, preliminary injunction and request for the convening of a three-judge court pursuant to 28 U.S.C. § 2282 (1970). *fn1" The Court will deny the various motions of plaintiffs and dismiss the case for lack of subject matter jurisdiction.

 I. Facts.

 The material facts herein are simple. Plaintiffs are husband and wife, citizens of Nigeria, who came to this country as visitors. The husband's status later became that of a student. Eventually, however, both overstayed their permitted time. An order to show cause was served on both plaintiffs but was withdrawn when both agreed to depart voluntarily. They failed to depart as agreed and challenged their deportation. *fn2"

 Before the immigration judge plaintiffs conceded deportability under the statute *fn3" but asserted that the statute was unconstitutional. The immigration judge, finding that he had no power to consider such a constitutional challenge, issued an order of deportation on October 9, 1974. Plaintiffs took an appeal to the Board of Immigration Appeals, again urging that the statutes in question were unconstitutional. The Board denied plaintiffs' appeal on January 20, 1975. In so doing, the Board held that plaintiffs' constitutional attack was without merit. On March 12, 1975, plaintiffs were ordered to report on March 20, 1975, for deportation. This action was filed on March 18, 1975.

 In this Court, however, plaintiffs adduce an additional theory. They note that 8 U.S.C. § 1151 (a) (1970) provides that the immediate relatives of an American citizen may be exempted from immigration quotas. Where the immediate relatives are parents, however, the American citizen must be over 21 years of age to make the parents eligible for such exemption. 8 U.S.C. § 1151(b) (1970). In this statutory scheme plaintiffs discern unconstitutional discrimination by age.

 II. The Law.

 Plaintiffs seek to predicate the jurisdiction of this Court on 8 U.S.C. § 1329 (1970), which provides that the District Court has jurisdiction over all causes, civil and criminal, arising under the Immigration and Nationality Act. This grant of jurisdiction, however, is at least partly modified by 8 U.S.C. § 1105a (1970). This section provides that judicial review of a final deportation order shall be had exclusively under the terms of what is now 28 U.S.C. §§ 2341-2350 (1970). *fn4" Such review would be lodged in the appropriate Court of Appeals.

 The apparent statutory conflict has been resolved by the Supreme Court. In Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968), the Court (per Harlan, J.) held that the Courts of Appeals had exclusive jurisdiction of all cases challenging a final deportation order or any orders made in the course of a deportation proceeding. *fn5"

 Appeals of orders denying ancillary relief, however, were properly in the District Courts. Thus, an appeal from the denial of a request to reopen a deportation proceeding *fn6" or review of a refusal to suspend deportation *fn7" is properly before a Court of Appeals. The administrative denial of a request to stay deportation, or other ancillary relief, may properly be reviewed in the District Courts. *fn8" It has been held that the power of the Courts of Appeals to review deportation orders extends to constitutional challenges to such orders. *fn9"

 III. Conclusions.

 Plaintiffs argue that they do not here challenge the validity of the deportation order. Rather, they challenge the constitutionality of the statutes on which the order was based. Hence, they say, this case does not seek review of a final deportation order. Instead, the plaintiffs state that they desire a judgment directed against the statutory underpinning of the order. They do not explain the distinction which they draw between a constitutional attack on the validity of the order and such an attack on the statutes on which the order is based. *fn10"

 From the very beginning of the administrative proceedings herein, plaintiffs have sought to interpose a constitutional defense to their deportation. The same challenge has been interposed at all levels, although another theory has been added in this Court. From the start, then, plaintiffs have viewed their constitutional theories as a complete defense in the deportation proceedings against them. Only after the defense failed before the administrative tribunals did plaintiffs seek to establish the distinction between the direct attack on the deportation order (which concededly would not be properly in this Court) and the indirect attack on the statutes underlying the deportation order (which, it is said, is ...


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