The opinion of the court was delivered by: COOLAHAN
The plaintiffs Cheng Ho Mui and Pun Yi Pan are Chinese nationals and aliens who entered the United States as non-immigrant crewmen. They proceeded to overstay the length of time which they were permitted to remain in this country.
The finding of deportability is not contested by either plaintiff. Rather, they seek review of the Director's order denying a stay of deportation. The plaintiffs had requested a stay pending the disposition of their applications for classification as refugees pursuant to Section 203(a)(7) of the Act, 8 U.S.C. § 1153(a)(7).
The District Director took no action on these applications on the ground that the plaintiffs could not adjust their status here, and that consequently the applications could not be considered. On April 11 the Director denied the plaintiffs' requests for stays of their deportation.
Having exhausted their administrative remedies, plaintiffs brought this action. They seek a judgment that they may apply in this country for a classification as a refugee pursuant to Section 203(a)(7), and that they are entitled to stays of deportation pending the Government's determination of those applications. They allege that they are not seeking to have their status adjusted, as that term is used in the statute, but merely to obtain a preliminary classification as refugees prior to their departure.
The defendant Director has moved to dismiss the complaint on the grounds that this Court lacks subject matter jurisdiction, and in the alternative, for summary judgment dismissing the complaint as a matter of law.
SUBJECT MATTER JURISDICTION
The defendant urges that exclusive jurisdiction over this matter is vested in the Third Circuit Court of Appeals by virtue of Section 106(a) of the Act, 8 U.S.C. § 1105a.
He contends that the requested stay merges with the final order of deportation which it seeks to restrain, and therefore, falls within the ambit of Section 106(a).
The exact scope of this provision has been the subject of considerable litigation. The Supreme Court has ruled that the decisive phrase "final orders of deportation" in this Section is not restricted to the adjudication of deportability alone, but also encompasses other determinations made during and incident to the administrative proceeding conducted by the Special Inquiry Officer which results in the final order of deportation. Foti v. I.N.S., 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963); Giova v. Rosenberg, 379 U.S. 18, 85 S. Ct. 156, 13 L. Ed. 2d 90 (1964).
In Foti, the Court found that a refusal to suspend deportation was within the purview of Section 106(a) and reviewable only by the Court of Appeals; in Giova, a similar conclusion was reached with respect to a motion to reopen the deportation hearing.
On the other hand, the District Court for the Southern District of New York has twice held that a denial of a stay was not within the ambit of § 106(a) and, twice taken jurisdiction of the complaint. Lam Tat Sin v. Esperdy, 227 F. Supp. 482 (S.D.N.Y.1964), aff'd. 334 F.2d 999 (2 Cir. 1964), cert. denied 379 U.S. 901, 85 S. Ct. 190, 13 L. Ed. 2d 176 [the Second Circuit did not discuss jurisdiction]; Tai Mui v. Esperdy, 263 F. Supp. 901 (S.D.N.Y.1966).
Having considered all of these opinions, as well as the exceptionally fine brief filed on this point by the Government, I find that this Court ...