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Abboud v. Immigration and Naturalization Service

April 07, 1998

GEORGE F. ABBOUD, PLAINTIFF-APPELLANT,
v.
IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT-APPELLEE.



D.C. No. CV-96-01836-TJH-AJW

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding

February 5, 1998--Pasadena, California

Before: Betty B. Fletcher, Frank J. Magill,* and Thomas G. Nelson, Circuit Judges.

The opinion of the court was delivered by: Magill, Senior Circuit Judge

FOR PUBLICATION

Argued and Submitted

SUMMARY

George F. Abboud brought this suit in the district court for declaratory and injunctive relief against the Immigration and Naturalization Service (INS) after the INS denied Abboud an immigrant visa. The district court dismissed Abboud's case, and Abboud now appeals. We affirm.

I.

Abboud, a citizen of Lebanon, entered the United States on December 23, 1986, on a visitor's visa. After his arrival in the United States, Abboud tried to obtain an immigrant visa by filing a Form I-485 Application for Permanent Residence (Application) with the INS. Fawzi Abboud (Fawzi), Abboud's father and a United States citizen, also tried to help Abboud obtain an immigrant visa by filing on Abboud's behalf a Form I-130 Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa (Relative Petition).

At the time that Abboud's Application and Fawzi's Relative Petition were filed, the Los Angeles district office of the INS (Local Office) only accepted Relative Petitions that were filed together with Applications. The Local Office then considered the Relative Petitions and Applications together in adjudicating an alien's immigration status. A petitioner who wished his Relative Petition to be considered separately from the beneficiary's Application could have elected to file the Relative Petition with the INS Western Adjudication Center (WAC) rather than with the Local Office. The beneficiary would then have been required to file his Application with a United States consulate overseas. Fawzi and Abboud rejected this latter option, however, and on July 30, 1987, they filed the Relative Petition and the Application with the Local Office.

To process Abboud's Application, the Local Office required an interview with Abboud. While Fawzi's Relative Petition did not require such an interview, the Local Office would not process the Relative Petition until after Abboud's interview, so that the Relative Petition and the Application could be considered together. The Local Office scheduled Abboud's interview for February 2, 1988.

Fawzi died on September 14, 1987. During Abboud's February 2, 1988 interview, Abboud reported Fawzi's death to the Local Office. The Local Office informed Abboud that Fawzi's Relative Petition was automatically denied because of Fawzi's death. The INS formally notified Abboud of this denial on April 16, 1990. On September 13, 1990, Abboud's Application was also denied. On January 29, 1991, following Abboud's request for reconsideration, the INS issued an amended decision again denying Fawzi's Petition.

On March 18, 1996, Abboud filed this suit with the United States District Court for the Central District of California seeking declaratory and injunctive relief. Abboud's complaint alleged that the Local Office's policy of considering Relative Petitions with Applications in a combined procedure violated his Fifth Amendment right to equal protection, as well as 8 C.F.R. S 204.1(c) (1996) and INS Operations Instruction 103.2q. Abboud asserted that, but for these violations, Fawzi's Relative Petition would have been considered separately from Abboud's Application and approved before Fawzi's death, entitling Abboud to an immigrant visa and also humanitarian relief under 8 C.F.R. S 205.1(a)(3) (1987). For relief, Abboud requested the district court to: (1) declare the INS's denial of Fawzi's Relative Petition void; (2) enjoin the INS from denying Abboud an immigrant visa because of past proceedings; and (3) enjoin the INS to make a nunc ...


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