Dear Sajhabashi,

I am searching for a case in different matter but got this case. I know this a long reading but interesting one.

SOURCE-www.westlaw.com

ROBERT P. PATTERSON, Jr., District Judge.
*1 Plaintiff Imtiaz Khan moves for summary judgment in this action seeking an order requiring Defendants Doris Meissner, Commissioner of Immigration and Naturalization Services and the Immigration and Naturalization Services ("INS") to grant Plaintiff advance parole in order that he may travel abroad to obtain a nonimmigrant visa status of H1B. Defendants move to dismiss the complaint or in the alternative cross move for summary judgment.
Plaintiff, a 28 year old citizen and national of Pakistan entered this country on a visitor's "B" visa on February 12, 1992 which entitled him to stay in the United States for six months until October 11, 1992. Loprest Decl., Ex. A at 13.
On February 16, 1993, over four months after his visitor's visa had expired, Plaintiff filed an application for political asylum in the United States, stating he had been abused by agents of the Pakistani government of General Ziaul Haq who had toppled the Bhutto government with which Plaintiff identified. [FN1] Loprest Decl., Ex. A at 15. Thereafter, Plaintiff applied for and was issued a one year authorization to work in the United States pursuant to 8 C.F.R. § 274a.12(c)(8) (authorizing employment for alien who has filed non-frivolous asylum application). This permit expires on April 29, 1995. Loprest Decl. Ex. B at 7.
On May 3, 1994, Climex Construction Corp. ("Climex") filed a petition with the INS for a change in Plaintiff's status so that he be classified as a nonimmigrant coming temporarily to the United States to work in a "specialty occupation" pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(b). On July 14, 1994, the INS issued a notice to Plaintiff that Climex's petition on his behalf had been approved and that he was entitled to H1B classification; but that
the status previously accorded the worker(s) had expired before this petition was filed. Therefore the worker(s) were out of status when this petition was filed. Thus the worker(s) are not eligible for the requested change of status. Accordingly, the request for a change of status is denied. There is no appeal from the decision denying the requested change of status.
Even though the worker(s) are ineligible for a change of status, they may depart the United States and apply for the proper visa at a consulate abroad.
Loprest Decl., Ex. A at 8.
On August 5, 1994, Plaintiff applied to the INS for advance parole in order to leave the country to obtain a nonimmigrant visa; Plaintiff requested permission to apply to the American Consulate in Mexico City, Mexico [FN2] to have the H1B visa placed in his passport. On August 11, 1994, the INS denied the application stating that advance parole was not appropriate for travel to obtain a nonimmigrant visa. Loprest Decl., Ex. B, at 3. On the same date it notified Plaintiff that his request did not fall within one of the classes of INS Operations Instructions ("OI") § 212.5(c)(1) through (5) and that advance parole was not issued for the purpose of leaving the U.S. to obtain a nonimmigrant visa. The letter to Plaintiff from the INS stated "Applicant can leave U.S., obtain H1B visa and then reenter U[.]S[.] as an H1B NI [nonimmigrant]," Loprest Decl., Ex. B at 1.
*2 INS Operations Instructions ("OI") § 212.5(c) lists six categories in which advance parole may be granted. Plaintiff claims that he is member of the category put forth in § 212.5(c)(5) "an alien ... in whose case parole has been authorized by the district director because of emergent or humanitarian considerations." Pl.Mem. at 5.
On October 26, 1994, Plaintiff filed this action seeking a writ of mandamus or a mandatory injunction compelling Defendants to grant him advance parole, Compl. ¶ 23(a) and (b).
On December 28, 1994, Plaintiff submitted another advance parole application (I-131) to the INS seeking permission to reenter the United States after travelling to the United States Consulate in Ottawa, Canada. On December 29, 1994, the INS denied Plaintiff's application stating that (1) "You have submitted an incomplete application with no supporting documents submitted to show emergency reason to travel"; (2) "There is no emergency at this time"; (3) "This is a business trip and there is no emergency reason at this time." Loprest Decl., Ex. A at 1.
Plaintiff moved for summary judgment on March 3, 1995 claiming the denials of advance parole were arbitrary and capricious and an abuse of discretion on the part of Defendants. Defendants' response and cross motion were filed on April 14, 1995. On April 17, 1995, Plaintiff requested an immediate hearing on the matter because Plaintiff's work authorization expires on April 29, 1995. That hearing was held on April 20, 1995 and further papers were received from both parties on April 21, 1995.

In so far as Plaintiff seeks any relief based on the April 29, 1995 expiration of his work permit, Plaintiff's motion is denied since renewals of such permits are permitted, see 8 C.F.R. § 274a.14(a)(2), and Plaintiff has not demonstrated that he reapplied to the INS to extend his work authorization. Therefore, Plaintiff has not exhausted his administrative remedies and is not entitled to judicial relief in that regard. See Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938) ("no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted"); Miss America Organization v. Mattel, Inc., 945 F.2d 536, 540-41 (2d Cir.1991).
With respect to Defendants' denials of Plaintiff's applications for advance parole, Plaintiff argues that those denials are arbitrary and capricious and an abuse of discretion because they are not in accordance with INS policies and procedures stated in a Declaration of Mary Ann Gantner, Assistant District Director/Examinations for the INS in the District of New York, dated December 15, 1992 submitted in the case Adeleke v. McNary, 92 Civ. 8440 (CSH) (S.D.N.Y.) (the "Gantner Declaration"). The standard of review in challenging denial of parole is that the INS decision "must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or was exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole." Bertrand v. Sava, 684 F.2d 204, 212-213 (2d Cir.1982).
*3 The Gantner Declaration upon which Plaintiff relies as proof of Defendants' abuse of discretion explains the fifth of six categories of alien applicants for whom advance parole may be granted: aliens "in whose case[s] parole has been authorized by the District Director because of emergent or humanitarian considerations." See Gantner Decl., ¶ 14. The Gantner Declaration states that " 'emergent or humanitarian considerations' are strictly limited by the District Director to the following three circumstances (1) the alien applicant's parent, spouse or child has died outside the country, (2) the applicant's parent, spouse or child is dying, or (3) the alien needs to participate in a visa petition interview at a United States consulate in a foreign country." Id. at ¶ 15. Plaintiff argues that the third circumstance applies to him.
Defendants have submitted the Declaration of Jack Lin, Acting Supervisory District Adjudications Officer in the Adjudications Branch of the New York District of the INS ("Lin Declaration") which states the third circumstance has only been used by the INS to grant advance parole to an alien whom it has required to attend a scheduled interview at a United States Consulate abroad in connection with a petition for an immigrant visa filed on his behalf. See Lin Decl. at ¶ 9. Plaintiff is seeking a nonimmigrant visa ("NIV") and no petition for an immigrant visa has been filed on Plaintiff's behalf. Defendants further state that it is not the practice of the INS to grant advance parole to an alien who possesses no status in the United States--that is an alien who is not lawfully present in this country, see Lin Decl. ¶ 8, the present status of Plaintiff.
Although the Gantner Declaration does not state in so many words that an alien applicant for advance parole must have legal status in the United States, i.e., be either a legal immigrant or nonimmigrant, a complete reading of the declaration in the context for which it was issued makes clear that the circumstances she identifies for "emergent or humanitarian considerations" applies to aliens legally in the United States.
In fact, Adeleke v. McNary, No. 92-8440, 1993 WL 17439, (S.D.N.Y., January 21, 1993) did not concern an alien who had to participate in a visa petition interview in a foreign country. Adeleke was an alien who was legally residing in the United States and was a member of the "CSS" class of aliens applying for lawful temporary status under § 245A of the Immigration Reform and Control Act of 1986 ("IRCA"), codified at 8 U.S.C. § 1255a. Section 1255a set up a one time only legislative program through which aliens could apply for lawful temporary resident status and then, after a one year waiting period, apply for permanent residency. One of the requirements for eligibility under this statute was that the alien had to be continuously present in the United States since November 6, 1986, the date IRCA was enacted, 8 U.S.C. § 1255a(a)(3)(A). Adeleke needed to protect his parental rights to his children in London and was concerned that if he were to leave the country to attend the hearing abroad, he would be unable to satisfy the "actual continuous presence" requirement as codified in 8 C.F.R. 245a.1(f)-(g). Judge Haight found that to deny plaintiff advance parole considering "emergent or humanitarian circumstances" was arbitrary and capricious and an abuse of discretion. ("If there is a legitimate fundamental difference in the humanitarian concerns raised by a parent who wishes to travel abroad to attend a child's funeral and a parent who wishes to travel abroad to ensure that his right to his child are not legally terminated, it eludes me entirely." Adeleke at *3).
*4 Plaintiff in the case at bar is neither legally residing in the United States nor has he shown emergent or humanitarian circumstances as in Adeleke that would warrant a finding of abuse of discretion on the part of Defendants in their decision to deny Plaintiff advance parole. Plaintiff's motion is, therefore, denied and Defendants' cross motion dismissing the complaint is granted.
IT IS SO ORDERED.

FN1. This application was pending at the time of argument. Since argument, Plaintiff's counsel has advised that the application has been denied.

Much of the CFR's relating to immigrations have changed since this case, so it would be very difficult to cite this as a precedent. Also, the nature of physical and compelling circumstances/evidence have different legal applicabilities and jurisdictions with the current immigration and border control regulations/legislations.

Therefore I would not have high hopes of using this case a guideline unless you have deep pockets or a pro-bono immigration lawyer who has appeared in Oprah and David Letterman as their first guests of the show.

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