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ACOSTA v. GAFFNEY

May 12, 1976

Carlos ACOSTA, et al., Plaintiffs,
v.
John J. GAFFNEY, acting District Director, INS, Defendant



The opinion of the court was delivered by: STERN

 This is an action to review an order of the Immigration and Naturalization Service denying the application of plaintiffs Carlos and Beatriz Acosta for a stay of deportation. Plaintiffs also seek a declaratory judgment of the invalidity of the order of deportation and the denial of the stay application on grounds that those orders violate plaintiffs' constitutional rights.

 The Court has jurisdiction of the action for review of the order denying the stay of deportation, pursuant to Section 10 of the Administrative Procedure Act, Title 5 United States Code, § 702. The Court's jurisdiction extends not only to the petition for review by the plaintiff parents, but also to the petition of the infant plaintiff, who is clearly "adversely affected or aggrieved" by the deportation order and the denial of the stay. Application of Amoury, 307 F. Supp. 213 (S.D.N.Y. 1969) (Weinfeld, J.). Since the Court has jurisdiction under the Administrative Procedure Act, the action for declaratory relief within the context of the petition for review lies as well. Title 28 United States Code, § 2201; cf. Wright Federal Courts, § 100, at 449.

 This action was commenced by the filing of a complaint on April 20, 1976. By order to show cause dated April 21, 1976, the Court set May 11, 1976 for a hearing on the issue whether a preliminary injunction against the deportation of plaintiffs Carlos and Beatriz Acosta should issue, pending the Court's determination of the substantive issues raised by the complaint, and issued a temporary restraining order against the deportations pending the May 11th hearing.

 The essential facts of the case are not in dispute. As formulated by the government:

 
1. On October 21, 1972, plaintiff Carlos Acosta, then single, a native and citizen of Colombia, was admitted to the United States, at New York, New York, as a nonimmigrant visitor authorized to remain as such until October 31, 1972.
 
2. Said plaintiff, however, did not leave the United States on or after October 31, 1972, but remained, and still remains here without authority.
 
3. On November 23, 1974, plaintiff Beatriz Acosta, then single, a native and citizen of Colombia, was admitted to the United States, at New York, New York (under the name of Maria Dolores Beatriz Mesa Velaquez), as a nonimmigrant visitor authorized to remain as such until December 5, 1974.
 
4. Said plaintiff, however, did not leave the United States on or after December 5, 1974, but remained, and still remains here without authority.
 
5. On December 25, 1974, the said plaintiffs became married to each other, in Jackson, New Jersey.
 
6. Thereafter, on August 25, 1975, the defendant, in deportation proceedings instituted against plaintiffs, issued Orders to Show Cause to them, charging in each that each plaintiff remained in the United States as a nonimmigrant for a longer time than permitted under Section 101(a)(15) of the Immigration and Nationality Act, 8 U.S.C. 1 [1101], et seq., and ordered them to appear for a hearing before an Immigration Judge, in Newark, New Jersey, on September 9, 1975, and show cause why they should not be deported from the United States as charged.
 
7. Prior to such issuance, defendant was advised, through a note received from one Louis A. Schwarz, M.D., A.C.O.G., P.A., dated August 11, 1975, with respect to plaintiff Beatriz Acosta who was then pregnant, as follows:
 
"Expected date of confinement: Sept. 7. She should not travel at this time.
 
s. L.A. Shwarz, M.D."
 
8. Thereafter, on September 23, 1975, plaintiff Lina M. Acosta was born to the plaintiffs.
 
9. Thereafter, on October 10, 1975, deportation proceedings against the adult plaintiffs proceeded on the Order to Show Cause before Immigration Judge Aaron I. Maltin who found, after hearing, and on the basis of said plaintiffs' admissions, that plaintiffs are deportable as charged and, in lieu of deportation, at plaintiffs' request, granted them Voluntary Departure at their own expense, on or before February 1, 1976. Plaintiffs waived appeal (to the Board of Immigration Appeals).
 
10. Thereafter, pursuant to plaintiffs' application, on February 13, 1976, the adult plaintiffs were granted an immigrant visa priority date of December 3, 1975.
 
11. Thereafter, on February 20, 1976, the defendant received the plaintiffs' application for stay of deportation, coupled with an application seeking non-priority status based on the following circumstances set forth on their behalf by Willie Salesky, Esquire, signed by Linda Atlas, as of counsel:
 
(a) The adult plaintiffs are the parents of a United States citizen born ...

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