Boguslaw Fornalik v. Brian Perryman, District Director of the Immigration and Naturalization Service

Citations: 223 F.3d 523; 2000 U.S. App. LEXIS 18995; 2000 WL 1101002Docket: 99-2442

Court: Court of Appeals for the Seventh Circuit; August 8, 2000; Federal Appellate Court

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Boguslaw Fornalik, a 17-year-old, is facing deportation to Poland despite having immediate family members—his mother, father, and three brothers—residing in the United States. He filed a habeas corpus petition claiming entitlement to permanent resident status based on his father's permanent residency and also sought recognition as an abused child of a lawful permanent resident under the Violence Against Women Act (VAWA). The district court dismissed his habeas petition after the Immigration and Naturalization Service (INS) recognized a prima facie case under VAWA but before a final decision was made. Subsequently, the INS placed Boguslaw's case in deferred action status for at least fifteen months, while simultaneously indicating intentions to remove him. The Court of Appeals for the Seventh Circuit found this inconsistent treatment unacceptable, reversed the district court's judgment, and instructed it to enforce the Vermont Service Center's deferred action order.

The case involves Boguslaw's father, Ryszard Fornalik, who entered the U.S. through the 1995 Diversity Immigrant visa lottery, leading to Ryszard obtaining lawful permanent resident status. Boguslaw, along with his mother and brother, entered the U.S. on tourist visas in September 1996, intending to establish permanent residency, particularly to access necessary medical care for his brother, Kryzsztof. The case highlights the importance of family unity in U.S. immigration law, suggesting that once one family member secures permanent residency, it typically facilitates the immigration process for the rest of the family.

The original title of the Immigration Act of 1990 was the "Family Unity and Employment Opportunity Immigration Act of 1990." Under the Immigration and Naturalization Act (INA), spouses and children are entitled to the same immigration status if accompanying or following a spouse or parent (8 U.S.C. sec. 1153(d)). However, complexities in immigration laws complicated this basic principle in Ryszard's case due to the rapid expiration of Diversity Visa program numbers, which expire at the end of the fiscal year (8 U.S.C. sec. 1154(a)(1)(G)(ii)(II)). Ryszard's adjustment of status was finalized on August 22, leaving him and his family with limited time to arrange their immigration matters. He did not request assistance from the Immigration and Naturalization Service (INS) for his family's cases, and although he allegedly visited the American Consulate in Warsaw, the outcome was unclear. Consequently, when the family arrived in the U.S. in 1996, they lacked the immigrant visas they should have received as derivative beneficiaries.

Normally, failure to obtain a visa number by September 30 would conclude the matter, as diversity visa numbers are valid only for that fiscal year. However, due to administrative issues in Poland's 1995 diversity visa program, Congress enacted a special exception in sec. 637 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), allowing certain Polish applicants selected under the 1995 program to receive visas without numerical restrictions. The criteria included being selected as a diversity immigrant, applying for an adjustment of status within fiscal year 1995, not being excludable or ineligible, and not becoming a lawful permanent resident during that year (IIRIRA sec. 637(a)). Boguslaw applied for permanent resident status under this provision, but the INS denied his request, stating he did not satisfy the requirement of having applied for adjustment of status during fiscal year 1995.

In October 1997, Boguslaw and his family were ordered to appear before an immigration judge. Due to various INS administrative errors and his mother's change of address, Boguslaw's situation differed significantly from that of his family, leading to the INS's intention to send him back to Poland alone.

The INS has expressed indifference regarding Boguslaw's potential deportation, suggesting he could rely on his elderly grandmother for care, despite lacking any information on her ability to provide support. The agency did not clarify its policy regarding the age at which an unaccompanied child could be deported to a country where they have not resided for nearly four years, leaving this issue unresolved. Facing deportation to Poland, Boguslaw took two legal actions: he filed a Form I-360 petition on March 26, 1999, to seek special immigrant status as an abused child, and a habeas corpus petition on April 1, 1999, claiming he deserved an immediate adjustment of status. His habeas petition argued that the INS was responsible for his irregular status due to its failure to notify the American Consulate in Warsaw about his father Ryszard's adjustment of status, which would have allowed him to claim derivative permanent residency. The INS contended it had no obligation to notify derivative beneficiaries and only does so when prompted. While the legal examination showed that the responsibility for the failure lay with Ryszard, who failed to file the necessary Form I-824 to inform the consulate of his status adjustment, the complexities of the immigration system highlighted the vulnerabilities of derivative beneficiaries like Boguslaw, who rely heavily on the actions of principal immigrants.

Congress authorized an alternative route for Boguslaw's immigration application under the Violence Against Women Act (VAWA), enabling abused spouses and children to petition the INS directly rather than relying on the principal alien. This provision, 8 U.S.C. § 1154(a)(1)(B), is grounded in Congress's plenary power over immigration and remains intact despite the Supreme Court's ruling in United States v. Morrison, which only invalidated a different section of VAWA. To initiate protection, a spouse or child must file Form I-360, allowing them to independently seek relief from their abusive situation.

The case at hand involves reconciling the application requirement of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) with the VAWA exception for abused dependents. While Boguslaw's situation reflects significant familial strife, including physical abuse by his father, the court notes this issue is not yet ripe for determination. The district court dismissed Boguslaw's habeas corpus petition, citing a lack of subject matter jurisdiction under IIRIRA § 242(g) and asserting that his failure to apply for a visa in 1995 precluded his claim under IIRIRA § 637.

Subsequent to the district court's dismissal, the Vermont Service Center approved Boguslaw's I-360 petition, granting him the option to adjust his status or take further action. The INS also issued a 'Notice of Deferred Action,' indicating that his removal would be deprioritized for 15 months unless terminated for cause. The INS did not discuss this development in its court brief, nor did it acknowledge it during oral arguments. Notably, Boguslaw's mother also received a similar petition approval, although her case appears to follow a different timeline.

The core issue in this case arises from the conflicting decisions made by the Immigration and Naturalization Service (INS) regarding Boguslaw's immigration status. The INS granted Boguslaw deferred action status on August 16 after he petitioned as a self-petitioning child of an abusive lawful permanent resident. However, there was a lack of clarification from the INS in its brief submitted to the court, despite having ample time to address the reconciliation of these orders prior to the September 14 deadline. During oral arguments, the INS argued that the court should not consider its recent action of placing Boguslaw under deferred action, a stance that is inconsistent with previous court rulings allowing judicial notice of official INS actions. 

The court referenced past cases establishing the precedent for judicial notice of agency determinations, indicating that the INS's argument lacks merit. The implications of the deferred action order are complicated, as it is generally understood to reflect the INS's resource allocation priorities. The Vermont Service Center appeared to take a pragmatic approach by not pursuing the removal of a minor. However, counsel for Boguslaw asserted that the Chicago office intended to disregard the Vermont decision, creating ambiguity around the effect of the deferral. The INS maintained that the Chicago district director's decision superseded the Vermont Service Center's determination, which raised concerns about the consistency of the INS as a unified entity. According to regulations, both offices hold equivalent authority, and there is no basis for one to override the other unless explicitly stated. Furthermore, Boguslaw had informed the Vermont Service Center of his existing order of removal, which complicates the situation further.

The INS placed Boguslaw in deferred action status, allowing him to apply for adjustment of status or an immigrant visa, and indicated it would not pursue removal for at least 15 months. The notice from the INS, titled 'Notice of Action', does not imply it was unauthorized or lacking authority. The regulatory framework does not prohibit such a decision. The suggestion from the INS that the August 16, 1999, order from Vermont should be ignored due to jurisdictional differences between offices is unconvincing. The principle that the latest agency action overrides previous ones applies, especially since the Chicago office was aware of prior actions by the Vermont office. The burden of any miscommunication within the INS should not fall on Boguslaw. The INS had over seven months to address the situation but did not provide a satisfactory resolution. Hence, the deferred action decision from August 16, 1999, is the starting point for all future actions in this case.

Furthermore, 8 U.S.C. sec. 1252(g) limits judicial review of certain actions by the Attorney General, as emphasized by the INS in defending the Chicago District Director's decision. This statute, part of the IIRIRA, states that courts lack jurisdiction to hear claims related to the commencement of proceedings, adjudication of cases, or execution of removal orders. However, the Supreme Court in Reno v. American-Arab Anti-Discrimination Committee clarified that sec. 1252(g) only restricts jurisdiction in specific circumstances. The court has also held that this section applies to habeas claims only when challenging actions within those specified areas.

Boguslaw's habeas petition does not qualify under section 1252(g) as it does not relate to the commencement of proceedings, adjudication of cases, or execution of removal orders. His filing is motivated by a desire to avoid returning to Poland, but this alone does not invoke the statute. The interpretation suggested by the INS could render the decision in AADC meaningless, as it would bar nearly all claims from aliens facing removal, contradicting the established principle of exhausting administrative remedies, as seen in Kashani v. Nelson. Section 1252(g) specifically limits district court jurisdiction to actions directly related to the Attorney General's decisions as enumerated in the statute. Boguslaw's claim regarding his adjustment of status to lawful permanent resident does not stem from any actions by the Attorney General concerning removal processes. He challenges the legality of the district director's denial of his adjustment application, which occurred before any removal proceedings were initiated. Thus, his case does not seek relief from a decision to commence removal actions but rather addresses an unrelated prior error that he argues affects the validity of his removal.

The case at hand is distinct from prior circuit decisions applying the AADC framework, as evidenced by the cited cases. The INS's argument that the district court correctly invoked 8 U.S.C. § 1252(g) to dismiss Boguslaw's claim is rejected. The INS also claims the dismissal of his habeas corpus petition was warranted due to a lack of exhaustion of administrative remedies, noting that Boguslaw could have raised his adjustment of status issue during his removal proceedings but chose not to appeal after accepting voluntary departure. This lack of appeal constitutes a failure to exhaust, justifying the district court’s refusal to consider his arguments regarding the visa application process.

Boguslaw seeks to bypass the exhaustion requirement on the grounds of futility, asserting that 8 U.S.C. § 1252(a)(2)(B)(i) bars judicial review of his adjustment denial. While this may be accurate, it’s argued that Congress is not mandated to provide judicial review in all cases, which is supported by precedent. Additionally, Boguslaw’s situation may challenge a legal error rather than a discretionary decision, which could place it outside the purview of § 1252(a)(2)(B)(i).

The court maintains its limited jurisdiction to review the actions of the INS, emphasizing that while the August 16 order could be seen as executing a removal order, the interpretation should focus on whether there was a decision made "by the Attorney General." It concludes that no such decision exists since the INS has indicated it will not remove Boguslaw. Thus, the court holds that it is within its jurisdiction to ensure that subsidiary officials adhere to the agency's decision. The judgment of the district court is reversed, and the case is remanded with instructions for the Chicago INS office to honor the deferral decision pending a final determination of Boguslaw's status.