Robledo Response to Motion to Dismiss - Surviving Spouses ...

spouse withdraws his petition. Regulation 206.1(b)(1). See also, United
States ex rel. Stellas v. Esperdy, 366 F.2d at 272-274 (Moore, J.,
dissenting). We can hardly imagine that Congress would have intended
Mrs. Pierno to be deported as a result of her husband’s death had he
been, for instance, killed in action while the status adjustment proceedings
were pending. Yet, such a result would follow from the Service’s decision.
The purpose of placing such discretion regarding immigration in the
hands of the Attorney General, rather than having that field governed by a
detailed statute, is to give some flexibility in treating a myriad of possible
situations. Regulations issued by the Attorney General should not be so
applied as to frustrate that Congressional intent.
Id. at 950-51 (emphasis added) (alteration in original). The automatic revocation regulations
continue to frustrate the intent of Congress, and are ultra vires. Consequently, the automatic
revocation regulations do not constitute a “permissible construction of the statute” found at 8
U.S.C. § 1155, and are “arbitrary, capricious, or manifestly contrary to the statute.” Chevron,
467 U.S. at 843-44. Defendants’ interpretation of 8 U.S.C. § 1155 is directly contrary to 8
U.S.C. § 1154 and, therefore, is entitled to no deference.
III.
PLAINTIFF HASSAN’S STATUS IS IN DISPUTE
Defendant notes in its brief that Plaintiff Hassan currently faces an outstanding order of
removal. Although Plaintiffs maintain that Plaintiff Hassan’s current status does not impact this
litigation, we wish to inform the court that, on December 31, 2008, Ms. Hassan filed a Motion to
Reopen Removal Proceedings with the Baltimore immigration court on the basis that her Notice
to Appear and subsequent Removal Order issued in abstentia were sent to a prior address which
had been properly changed with USCIS several years ago. On January 21, 2009 Mrs. Hassan
and her immigration attorney were served with a Form I-166 notice of departure advising Mrs.
Hassan that she is to report to USCIS in Baltimore for deportation to Sierra Leone on February
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