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Keywords

lawsuitjurisdictionappealpleasummary judgmentnaturalizationliens

jurisdictionstatuteappealfelonynaturalizationliens

Related Cases

Romeiro De Silva v. Smith

Facts

Pedro M. Romeiro de Silva, a permanent resident alien, was ordered deported after pleading guilty to possession of a narcotic drug for sale. He requested deferred action status under Operations Instruction 103.1(a)(1)(ii), arguing that his U.S. citizen wife and child would suffer if he were deported. The INS district director denied his request, leading Romeiro de Silva to file a lawsuit claiming abuse of discretion. The district court granted summary judgment to the INS, prompting the appeal.

Romeiro de Silva, a Portugese alien, pled guilty in Arizona state court to commission of the felony of unlawful possession of a narcotic drug for sale (cocaine) in violation of Arizona Revised Statutes Annotated 36-1002.01, 13-701 , 13-702 , and 13-802 . He had been admitted into the United States as a permanent resident in 1979 because he married a United States citizen. On the basis of the narcotics conviction, an immigration judge found him deportable under section 241(a) of the Immigration and Nationality Act ('the Act'), 8 U.S.C. 1251(a)(11) , and ordered him deported on November 5, 1982.

Issue

Whether the district court had jurisdiction to review the district director's decision not to recommend that the regional commissioner grant Romeiro de Silva deferred action status.

The issue presented by this appeal is whether the district court had jurisdiction to review the district director's decision not to recommend that the regional commissioner grant Romeiro de Silva deferred action status.

Rule

The court applied the principle that Operations Instruction 103.1(a)(1)(ii) is an intra-agency guideline that confers no substantive benefits on aliens seeking deferred action status, thus limiting the jurisdiction of the district court to review such decisions.

The INS contends that Operations Instruction 103.1(a)(1)(ii) is an intra-agency guideline which confers no substantive benefit on aliens seeking inclusion in the deferred action category.

Analysis

The court determined that the 1981 amendment to Operations Instruction 103.1(a)(1)(ii) superseded the previous 1978 instruction, which had been interpreted to confer substantive benefits. The 1981 instruction was found to operate for the convenience of the INS and did not create a protectible interest in deferred action status. Therefore, the district court lacked jurisdiction to review the district director's decision.

Conclusion

The court remanded the case to the district court with instructions to dismiss for lack of jurisdiction, affirming that the district court could not review the INS's discretionary decision regarding deferred action.

Who won?

The Immigration and Naturalization Service (INS) prevailed in the case because the court found that the district court lacked jurisdiction to review the INS's decision regarding deferred action status.

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