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YUK-LING WU JEW v. AG

October 29, 1981

YUK-LING WU JEW and Wung Gip Seto, Plaintiffs,
v.
ATTORNEY GENERAL, Defendant



The opinion of the court was delivered by: PARKER

MEMORANDUM OPINION

The plaintiffs in this proceeding challenge the application of Immigration and Naturalization Service (INS or Service) regulations by the United States Department of Justice to deny derivative visa eligibility to the surviving family of a deceased alien who had been approved for fifth preference immigrant status. *fn1" Plaintiff Jew is a naturalized American citizen and a sister of Doo Yim Wu, the deceased. Plaintiff Seto is his widow. Plaintiff Jew successfully filed a visa petition seeking fifth preference immigrant status for her brother, then a citizen of China. Doo Yim Wu died before he could take advantage of the visa. His death resulted in the cancellation of any rights of his wife and family to preference status. The plaintiffs contend that the INS regulation providing for the automatic revocation of a fifth preference visa upon the death of the beneficiary, *fn2" contravenes an express statutory grant of discretionary authority under the Immigration and Nationality Act (Act or Immigration Act) *fn3" warranting reinstatement of the derivative visa eligibility extended to the surviving relatives. The Court finds that the promulgation and subsequent application of the revocation regulation is reasonable and not inconsistent with the Act. Accordingly, summary judgment is granted for the defendant and this proceeding is dismissed.

 I. Background

 There is no dispute as to the material facts and they may be briefly stated. Plaintiff Jew was born in China and became a naturalized United States citizen in March 1974; plaintiff Seto is a citizen and resident of China. *fn4" One year following her naturalization, plaintiff Jew filed a visa petition with the Baltimore Office of the INS seeking fifth preference immigrant status for her brother Doo Yim Wu. The Director of that Office approved the petition the following year and forwarded it to the United States Consulate in Hong Kong.

 In January 1979 the American Consul in China notified plaintiffs that the Wu family should report to the Hong Kong office for the processing of visas for the family, and passport application. While the fifth preference status was approved only as to Doo Yim Wu, his family became derivatively eligible for immigrant visas under the Immigration Act. *fn5" Further correspondence from the American Consul notified the Wus that issuance of the visa was forthcoming and that finalizing procedures would be undertaken upon their arrival at the Hong Kong office. Because of travel restrictions, however, the family was unable to travel to Hong Kong and in February they proceeded to an alternate office located in Guangzhou, China, where they were informed that their papers could not be processed at that time.

 Shortly thereafter, Mr. Wu's health deteriorated and following a period of hospitalization, he died on July 11, 1980. During Wu's illness, his wife appeared before the American Consul at Guangzhou where she learned that the visas could not be processed without her husband's presence.

 Upon learning of Wu's death, the Consul promptly notified plaintiff Seto that immigrant visas would not be issued to a surviving spouse and children absent approval by the Immigration Service. The visa petition was then returned to Baltimore, the originating office, for formal revocation in accordance with standard procedures. Plaintiff Jew sought reconsideration of the revocation on August 13. The request was denied by the District Director on October 1, 1980. Denial was founded on INS regulations which provide for automatic revocation of a visa petition in the event of the beneficiary's death. *fn6" The District Director ruled that the visa petition expired under the regulations upon Wu's demise, and the family's eligibility likewise expired. Following that denial, plaintiffs promptly filed a complaint seeking declaratory and injunctive relief to secure reinstatement of Wu's fifth preference visa petition for the benefit of his surviving family.

 II. Legal Analysis

 In considering the plaintiffs' substantive claims, it is first necessary to examine the scope of the Attorney General's discretion as it pertains to immigration matters and second, to determine whether the regulation at issue is a proper exercise of discretion consistent with legislative intent.

 The Court finds that the authority of the INS over the expulsion or exclusion of aliens is particularly broad and that the manner in which the Service denied immigrant status to Wu's family does not constitute an abuse of discretion. Plaintiffs argue that the revocation provision contained in section 205.1 of the regulations violates the Attorney General's duty to exercise discretion when revoking visas. However, the regulation, insofar as it provides for automatic revocation of visa approval upon death of the beneficiary, is a valid exercise of discretion. Indeed, the application of the mandatory revocation mechanism to deny visa eligibility to Wu's family is fully consistent with the legislative intent embodied in the derivative visa eligibility which Wu's family possessed under the Immigration Act until his death. *fn7"

 A. The Scope of Discretion

 The concomitant authority of Congress and the Executive over matters pertaining to immigration is vast. As the Supreme Court noted in Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977), a case unsuccessfully challenging INS refusal to recognize the relationship between illegitimate children and their natural fathers:

 
it is important to underscore the limited scope of judicial inquiry into immigration legislation .... Our cases "have long recognized the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."

 430 U.S. at 792, 97 S. Ct. at 1478 (citations omitted) (Emphasis added.) *fn8" Accord, Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S. Ct. 1883, 1892, 48 L. Ed. 2d 478 (1976) (upholding the imposition of additional criteria for aliens ...


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