FBI namecheck should not have withheld adjudication.
FBI namecheck for 485 should have always happened in the background.
Look at this opinion(WAN SHIH HSIEH v. KILEY, District
Docket No. 77-6144, No. 439 - September Term, 1977
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
569 F.2d 1179; 1978 U.S. App. LEXIS 13074
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The investigation which appellant seeks to compel the INS to complete [**10] in the present action is not directed toward the preference petitions for the children but the question of whether appellant fraudulently acquired her immigration status. Whether the INS pursues this latter inquiry further and, if so, whether it will institute proceedings to rescind her status are HN4Go to this Headnote in the case.matters solely within the INS's discretion, see United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973); United States ex rel. Masucci v. Follette, 272 F. Supp. 563, 565 (S.D.N.Y. 1967), and hence are not reviewable under the Administrative Procedure Act or 28 U.S.C. § 1361. Moreover, the INS has five years from the date when appellant acquired her permanent resident status within which to institute rescission proceedings. Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977). In short, neither the children's application for admission into the United States as immigrants nor the Consul's request to the INS create a duty on the part of the INS to appellant to investigate whether rescission proceedings should be instituted, much less to complete any such investigation within a shorter period than that provided by [**11] § 246(a) of the Act, 8 U.S.C. § 1256(a). Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.
In stating in its opinion that the INS had a duty under 8 C.F.R. § 205 and 22 C.F.R. § 42.43 to conduct and complete the investigation requested by the Consulate, the district court appears to have confused the INS's duty to act on preference petitions, which are concerned solely with the family relationship between the parties, with the question of whether the INS must investigate alleged fraud in obtaining a permanent resident status. These matters are entirely separate and distinct. Since there is no question as to the parent-child relationship between appellant and her children in Taiwan, the preference petitions were approved by the INS on April 9, 1975. The INS's duty in the matter ended there. To the extent that the district court's opinion states that the INS is under a further duty to investigate a fraudulently-obtained preference status it is vacated.
FBI namecheck for 485 should have always happened in the background.
Look at this opinion(WAN SHIH HSIEH v. KILEY, District
Docket No. 77-6144, No. 439 - September Term, 1977
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
569 F.2d 1179; 1978 U.S. App. LEXIS 13074
----------------------------------------------------------------------
The investigation which appellant seeks to compel the INS to complete [**10] in the present action is not directed toward the preference petitions for the children but the question of whether appellant fraudulently acquired her immigration status. Whether the INS pursues this latter inquiry further and, if so, whether it will institute proceedings to rescind her status are HN4Go to this Headnote in the case.matters solely within the INS's discretion, see United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973); United States ex rel. Masucci v. Follette, 272 F. Supp. 563, 565 (S.D.N.Y. 1967), and hence are not reviewable under the Administrative Procedure Act or 28 U.S.C. § 1361. Moreover, the INS has five years from the date when appellant acquired her permanent resident status within which to institute rescission proceedings. Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977). In short, neither the children's application for admission into the United States as immigrants nor the Consul's request to the INS create a duty on the part of the INS to appellant to investigate whether rescission proceedings should be instituted, much less to complete any such investigation within a shorter period than that provided by [**11] § 246(a) of the Act, 8 U.S.C. § 1256(a). Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.
In stating in its opinion that the INS had a duty under 8 C.F.R. § 205 and 22 C.F.R. § 42.43 to conduct and complete the investigation requested by the Consulate, the district court appears to have confused the INS's duty to act on preference petitions, which are concerned solely with the family relationship between the parties, with the question of whether the INS must investigate alleged fraud in obtaining a permanent resident status. These matters are entirely separate and distinct. Since there is no question as to the parent-child relationship between appellant and her children in Taiwan, the preference petitions were approved by the INS on April 9, 1975. The INS's duty in the matter ended there. To the extent that the district court's opinion states that the INS is under a further duty to investigate a fraudulently-obtained preference status it is vacated.