to satisfy their obligations under the Joint Communique. Specifically, it contests the Attorney General's use of her parole authority and the decision to permit the migration of qualified Cuban nationals on the immigrant visa waiting list as of September 9, 1994.
In Count I, plaintiff asserts that the use of parole to allow ineligible Cuban nationals to "enter and remain in the United States permanently" is inconsistent with the Attorney General's statutory parole authority granted by Section 212(d)(5)(A) of the Immigration and Naturalization Act ("INA"), codified at 8 U.S.C. § 1182(d)(5)(A). FAIR claims that this provision mandates that parole be temporary and that parolees are to be treated just as any other applicants for admission; FAIR also avers that Congress did not intend that parole be used to evade limits on immigration.
Count II presents plaintiff's claim that, whether or not the Attorney General is misusing her parole authority (as claimed in Count I), to permit Cuban nationals to remain in the United States based on their nationality violates Section 244A(g) of the INA, codified at 8 U.S.C. § 1254a(g). According to plaintiff, such a nationality preference can only be applied if the Attorney General declares Cuban nationals in need of "temporary protected status" because of an extraordinary and temporary condition which prevents their return to their homeland, something she has not done.
In Count III, FAIR avers that the decision to issue documentation that enables Cuban immigrants to "enter and remain in the United States permanently" is the equivalent of issuing visas to immigrants not eligible for visas pursuant to 8 U.S.C. § 101(a) (16). Count III further claims that the issuance of this documentation to Cubans contravenes 8 U.S.C. § 1152(a)(1), which prohibits the use of preferences based on, inter alia, nationality.
Finally, in Count IV, plaintiff claims that the Attorney General cannot adjust the status of paroled Cuban nationals after one-year of residence. FAIR avers that, pursuant to the Cuban Adjustment Act, the status of lawfully admitted aliens can only be adjusted if the paroled Cuban "is eligible to receive an immigrant visa." Because these immigrants are not "eligible to receive an immigrant visa", FAIR claims that their status cannot be adjusted.
Presently pending are two motions to dismiss. The first asserts that this case must be dismissed for lack of subject matter jurisdiction, because the case presents nonjusticiable political questions and FAIR does not have standing. Fed. R. Civ. P. 12(b)(1).
The second motion avers that plaintiff fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6).
A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Kenneda v. United States, 880 F.2d 1439 (D.C. Cir. 1989). The factual allegations of the complaint must be presumed true, Kowal v. MCI Communications Corp., 305 U.S. App. D.C. 60, 16 F.3d 1271, 1276 (D.C. Cir. 1994); see 5A Charles A. Wright, et al., Federal Practice and Procedure, § 1357, at 304 (1990 & Supp. 1995), and plaintiff is entitled to all favorable inferences which can be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Nonetheless, "the court need not accept inferences drawn by plaintiff if such inferences are unsupported by the facts set out in the complaint." Kowal, 16 F.3d at 1276.
A. The Political Question Doctrine
The political question doctrine is "essentially a function of the separation of powers". Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). It prevents the judicial branch from encroaching upon areas reserved to the other branches of the federal government. See Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986) ("The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch."). When the government moves to dismiss on political question grounds, the Court must conduct "a discriminating inquiry into the precise facts and posture of the particular case" to ensure that the lawsuit is not "a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." Id.
In Baker v. Carr, the Supreme Court noted that "prominent on the face of any case held to involve a political question" will be:
(1) "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or"
(2) "a lack of judicially discoverable and manageable standards for resolving it; or"