APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 76-709).
Gibbons, Maris and Hunter, Circuit Judges.
The United States Immigration and Naturalization Service (herein "INS") acting through its district director, the nominal defendant, appeals from the district court's May 12, 1976 order reversing the INS' orders of deportation and denial of stay of deportation of the alien plaintiffs. The facts of the case are not in dispute and will be briefly stated.
Carlos Acosta, a native and citizen of the Republic of Colombia, was admitted to the United States October 21, 1972 as a nonimmigrant visitor authorized to remain in the United States until October 31, 1972. Maria Dolores Beatriz Velaquez, now Beatriz Acosta, also a Colombian, was admitted on a nonimmigrant basis November 23, 1974 and was authorized to remain until December 5, 1974. The two aliens overstayed the period of their authorized visits and were married in Jackson, New Jersey on December 25, 1974.
The INS instituted deportation proceedings against the Acostas and scheduled a hearing to be held in Newark, New Jersey on September 9, 1975. Upon receipt of a physician's statement that Beatriz, who was then pregnant, was unable to travel, the deportation hearing was rescheduled to take place shortly after the birth, on September 23rd, of the Acostas' daughter, Lina.*fn1 The Acostas were found to be deportable by the immigration judge on the basis of their own admissions. They requested and were granted voluntary departure on or before February 1, 1976. The privilege of voluntary departure was to be withdrawn and an order of deportation to Colombia was to become effective immediately in the event the aliens failed to depart voluntarily within the time allowed. The Acostas waived their right to take an appeal from the decision of the immigration judge to the Board of Immigration Appeals.
On February 20, 1976 the Acostas applied to the INS for a stay of deportation asserting that their deportation would cause hardship to the Acosta family in the uprooting of the five-month-old child, economic hardship to the Acostas and Carlos' nephew and niece, United States citizens to whose support Carlos contributed, in the loss of the $175 per week shipping clerk job held by Carlos in this country without any prospect of immediate gainful employment or other means of support in Colombia and, finally, the Acostas asserted that their deportation would unconstitutionally deprive their daughter of the equal protection of the laws which was her right as a United States citizen.
By letter dated April 6th, the INS denied the Acostas' request for stay of deportation on the ground that the facts set forth in the request did not constitute extreme hardship and offered to consider cancelling the outstanding warrant of deportation against them and reinstituting the privilege of voluntary departure if the Acostas would report to the Newark, New Jersey office with tickets confirmed for departure by April 16, 1976.
The Acostas, naming themselves and their infant daughter as plaintiffs, filed in the district court on April 21 an action for a declaratory judgment and review of the denial of stay of deportation under the Declaratory Judgment and Administrative Procedure Acts, 28 U.S.C. § 2201 and 5 U.S.C. § 702. In addition, the Acostas sought restraint of the INS from enforcing the orders of deportation pending the district court's determination of the case and any other appropriate relief. The basis for relief set forth in the complaint is that the deportation order and denial of stay will result in the possible enforced break up of the Acosta family unit, economic hardship to the family and an unconstitutional discrimination against Lina by reason of her alien parentage in derogation of her right as a United States citizen to equal protection of the laws.
The district court determined that it had jurisdiction to review the order of the INS denying stay of deportation under section 10 of the Administrative Procedure Act, 5 U.S.C. § 702, that its jurisdiction extended to the infant plaintiff as a person "adversely affected or aggrieved" by the INS orders, and that, its jurisdiction being established under the Administrative Procedure Act, the court was empowered to grant declaratory relief. The court issued a temporary restraining order against the deportation of the Acostas. It rejected Lina's Fifth Amendment equal protection claim but ruled that the orders compelling the deportation of the parents of the five-month-old infant constituted a compelled de facto deportation of the infant citizen in violation of her constitutional right to live and remain in the United States. 413 F. Supp. 827, 831-833 (D.N.J. 1976). The appeal now before us followed.
We are confronted at the outset with the question of the jurisdiction of the district court to entertain the action. It is clear that the court did have jurisdiction to review at the instance of Carlos and Beatriz the refusal of the INS to stay its order of deportation against them. Cheng Fan Kwok v. Immigration Serv., 392 U.S. 206, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968). That jurisdiction is conferred by section 279 of the Immigration and Nationality Act, 8 U.S.C.A. § 1329, which confers upon the district courts jurisdiction of all causes arising under any of the provisions of subchapter II*fn2 of the Act. See 2 C. Gordon & H. N. Rosenfield, Immigration Law and Procedure 8-40.1 n.1 (1976). Section 279 was subsequently modified by the addition of section 106 to the Act, 8 U.S.C.A. § 1105a, which conferred upon the courts of appeals exclusive jurisdiction to review final orders of deportation made by the INS against aliens within the United States. While section 106 thus withdrew from the district courts their jurisdiction under section 279 to review the validity of deportation orders, it did not affect their jurisdiction under that section to review the denial by the INS of the stay of a deportation order which has been sought on grounds other than the invalidity of the order.
The question remains whether section 279 conferred jurisdiction on the district courts of the claim for relief made on behalf of the infant, Lina Acosta. The language of section 279 is broad. Jurisdiction is conferred upon the district courts "of all causes, civil and criminal, arising under any of the provisions of this subchapter . . ." 8 U.S.C.A. § 1329. The operative language is substantially the same as that of 28 U.S.C. § 1331 which confers jurisdiction upon the district courts "of all civil actions wherein the matter in controversy . . . arises under the Constitution, laws or treaties of the United States . . ." It is true that section 1331 also required, at the time this suit was brought, a showing of a jurisdictional amount in controversy in excess of $10,000 in an action such as this against a government officer and no such jurisdictional amount has been claimed or shown in this case.*fn3 Accordingly, section 1331, itself, does not support jurisdiction here. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); Smith v. Spina, 477 F.2d 1140, 1143-1144 (3d Cir. 1973). But in view of the similarity of the language used in the two sections we think that section 279 should be given an interpretation, similar to that which is accorded section 1331, which is sufficiently broad to provide subject-matter jurisdiction here. An action "arises under the . . . laws . . . of the United States," for purposes of jurisdiction under section 1331, if the complaint seeks a remedy provided by the statute in question, if the disposition of the case requires a construction of the statute, or if a policy of the statute requires the application of federal legal principles to resolve the controversy. See Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974). Applying these guidelines to the determination of whether the district court had jurisdiction under section 279 to hear Lina's claim for relief, we conclude that the section provides jurisdiction both in itself since it authorizes an action for the review of denial of a stay of deportation and in that the disposition of the action necessarily involves the application of federal legal principles in the field of immigration, a field exclusively committed to the federal government. Whether Lina has standing to invoke such an action remains to be considered.
Lina was, of course, not a party to the deportation proceedings in the INS nor was intervention sought on her behalf in those proceedings. We think that nonetheless she has standing to join in the present action as a plaintiff. Sections 702-706 of title 5 U.S.C., formerly section 10 of the Administrative Procedure Act, confer upon a person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of any relevant statute" the right to judicial review in the special statutory review proceeding provided by statute where, as here, such a proceeding is authorized by the relevant statute, such proceeding to be conducted in the court designated by the statute, here the district court as authorized by section 279. Lina has alleged that as a United States citizen she has been subjected to a legal wrong by the order denying a stay of deportation of her parents in that the order will violate her constitutional rights to the equal protection of the laws and to reside in the United States. Accordingly, we conclude that 5 U.S.C. §§ 702-706, although not themselves constituting an independent grant of subject-matter jurisdiction to the district courts, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977); Local ...