The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The plaintiffs filed this action pursuant to the Immigration and Nationality Act (Act), specifically 8 U.S.C. §§ 1101-1503, and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Plaintiffs request that the Court declare that the denial of the sixth preference visa petition for Shiraz Hassanali (Hassanali), and the efforts to deport Hassanali and his family are "contrary to the applicable laws and regulations, unsupported by reasonable, probative, and substantial evidence, and an abuse of discretion." Plaintiffs seek to have the Court declare that Hassanali is entitled to approval of the sixth preference visa petition and for the Court to enjoin the defendant from "detaining, deporting, or requiring the departure from the United States" of Hassanali and his family. The case is now before the Court after consolidation of the hearing on the motion for a preliminary injunction with a hearing on the merits.
See Fed.R.Civ.P. 65(a)(2).
The underlying facts are as follows: Plaintiff Kaderali is the owner of a gasoline station and desires to employ Hassanali as the manager of that station. Hassanali and his family are citizens of India.
The Immigration and Naturalization Service (INS) commenced deportation proceedings against Hassanali and his family on February 2, 1981, charging that they had been admitted to this country as visitors on or about September 1, 1979, and had overstayed their authorized period of temporary stay. Complaint Exhibit B. On March 18, 1981, Kaderali submitted to INS a visa petition seeking sixth preference classification for Hassanali on the basis of the labor certification. Complaint Exhibit C. At the final deportation hearing on March 11, 1981, the Immigration Judge granted Hassanali and his family three months for their voluntary departure from the United States, apparently on the basis of the pending sixth preference visa petition. Counsel for Hassanali wrote the INS District Director in Buffalo, New York, calling attention to the submission of the sixth preference visa petition submitted to INS at their office in Albany, New York, and requesting an extension of the voluntary departure date. The Buffalo INS office responded, noting that it had no record of the papers submitted to the Albany INS office. Counsel responded on June 11, 1981, and advised the Buffalo INS office of the date the petition was submitted and renewed his request for an extension of time. No response was ever received from INS, however, INS did not pursue the deportation of Hassanali while the petition was under consideration by its Albany office.
INS took no action on the sixth preference visa petition for almost three years, and the plaintiffs maintain, and it is apparently undisputed, that the visa petition date became current during the months of June, July, August and September 1982, and for the entire fiscal year commencing October 1983, including the month of September 1984.
In the meantime, when Kaderali's lease on the Troy, New York, gasoline station was about to expire, the lessor proposed to raise the rent from $1,000 to $1,800 per month. Kaderali rejected the increase as exorbitant and terminated the lease on July 30, 1982. He found a new location the following year and reopened his business on September 14, 1983, under the new trade name, MKB Getty Service Corporation, which, notwithstanding the name, was not incorporated, and which, like the previous gasoline station, was wholly owned and operated by Kaderali. The new station is located in Latham, New York, approximately 11 miles from the old station. Hassanali was employed as the manager of both stations and Kaderali continues to adhere to his offer to employ Hassanali on permanent basis as the manager of his service station.
On March 20, 1984, the District Director of INS at Buffalo denied the visa petition. Complaint Exhibit F. In his decision he cited DOL regulation 20 C.F.R. § 656.30(c)(2) and ruled that, "the record indicates that the L & M Service Station ceased to exist in July 1982, thereby terminating the validity of the labor certification obtained for the position of manager. In view of the foregoing, the position as certified no longer exists. The petition is therefore denied." Id. The appeal to the INS Assistant Commissioner was denied. Complaint Exhibit G. In denying the appeal, the Assistant Commissioner ruled that:
Thereafter, the District Director advised Hassanali that INS intended to deport him from the United States.
In seeking relief from this Court, the plaintiffs made two arguments, one which is no longer applicable. First, they argued that the attempt to deport Hassanali and his family "ignores the legislative policy expressed in the Simpson-Mazzoli Bill". That argument is no longer valid since the Bill was not enacted by Congress. The second argument is that the defendant's subordinates "erroneously assumed authority to invalidate a labor certification issued by [DOL], without soliciting the advice of that Department." Plaintiffs also contend that the defendant has misread the DOL regulation in finding that the certification is no longer valid.
The defendant disagrees with the plaintiffs' interpretation of the applicable law and regulation, and in addition, argues that the District Court ...