Editor's Comments of the Day

In Fornalik v. Perryman, No. 992442 (7th Cir. August 8, 2000), the 7th Circuit tries to make sense out of the confusing and contradictory actions of the INS. The Petitioner is a seventeen year old boy whom the INS was trying to deport even though he has been in the US for almost four years, his mother, father and three brothers are all in the US and the closest relative he has in his home country is a nonagenarian grandmother. Petitioner's father was granted a visa under the Diversity Lottery for fiscal years 1995. Apparently due to confusion and misunderstanding Petitioner, his mother and brothers did not receive immigrant visas before the end of the fiscal year. They entered the United States with tourist visas, in September 1996, expecting to stay. In October 1997, the INS served Notices to Appear on Petitioner his mother and his brothers. Due to administrative errors and the mother's change of address, Petitioner's case had been separated from the rest of the family's and the INS intended to remove him from the United States. The court noted, "(s)urprisingly, the INS could not articulate an agency policy regarding at what age an unaccompanied child would not be deported…." Petitioner's family life deteriorated to the point his mother left the household and sought and order of protection and Petitioner himself was the victim of physical abuse.

Petitioner filed with the Vermont Service Center for an immigrant visa as the abused child of a visa recipient and shortly after filed a habeas corpus petition with the district court. The district court found that it did not have jurisdiction to hear a claim arising from a decision of the Attorney General to "commence removal proceedings." After the district court's dismissal but before the circuit court's consideration of the appeal, the Vermont Service Center approved the special immigrant petition. The approval notice indicated that Petitioner could apply for adjustment of status and stated that the Service had decided to place the case under deferred action for fifteen months.

The court addressed these contradictory actions by the Service Center and the District Office by finding that the INS was one unified agency. It found that the regulations equate district and service center directors, their delegated functions are similar and neither trumps the other except where regulations explicitly provide. The court found unconvincing the argument, "that is from Vermont and this is Chicago," and followed a simple decision principle. Since the Vermont office was the last to act, its deferred action remained in effect until terminated for reasonable cause and upon appropriate notice.

The court relegated to the position of a "conceivable fly in the ointment," the question of whether or not it even had jurisdiction to hear the case. The INS argued that the court was precluded from jurisdiction as this was a challenge to discretionary action taken by the Attorney General to (1) commence proceedings, (2) adjudicate cases or (3) execute removal orders. The court found it did not fall into any of those categories.

The case does highlight existing problems within the INS. It shows the inconsistency and inefficiency with different offices within the same agency using federal monies and judicial resources to carry out their squabble over which office within the agency would have its way. The court's characterization of the jurisdictional issue also illustrates the judiciary's uneasiness in dealing with this issue in the wake of IIRIRA.