The opinion of the court was delivered by: SAUNDRA BROWN ARMSTRONG
On February 7, 1992, plaintiff Barry Dennis McGuire, an illegal alien, filed a complaint in this Court seeking declaratory and injunctive relief concerning a prior deportation order. The parties appeared before this Court on June 15, 1992, for oral argument on defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, filed pursuant to Federal Rule of Civil Procedure 12(b)(1). After having read the papers submitted and considered the arguments of the parties, for the reasons set forth below, the Court grants defendant's motion.
Plaintiff Barry Dennis McGuire is a native citizen of the United Kingdom (Northern Ireland) and the Republic of Ireland. He entered the United States on February 12, 1990, without a visa, under the Visa Waiver Pilot Program ("VWPP"). The VWPP, a program administered by the Immigration and Naturalization Service ("INS"), permits citizens of designated countries to enter the United States for a period of up to ninety days without requiring that they first obtain nonimmigrant visitor's visas. See 8 U.S.C. § 1187; 8 C.F.R. § 217.2(a) (1992).
At the time of his entry into this country, plaintiff was asked to read and sign a three-page form entitled "Visa Waiver Pilot Program Information Form" (Form I-791). See Administrative Record ("AR") at 6-8. By signing this form, plaintiff acknowledged that he was authorized to stay in the United States for a maximum of ninety days and that one of the conditions of his stay was that he would not accept employment. Id. He further acknowledged that failure to comply with these or any other conditions of his stay would subject him to immediate deportation proceedings, and that by entering under the VWPP, he was waiving any right to challenge such deportation. With respect to the waiver of the right to a deportation hearing, this form provided, in pertinent part, as follows:
See VWPP Information Form (emphasis added), AR at 8.
Plaintiff signed the form on February 12, 1990, and was permitted to stay in this country until March 11, 1990. See AR at 5. However, plaintiff did not leave the country on or before his scheduled departure date,
and he also obtained employment with a construction company in San Francisco, California. Consequently, on May 29, 1991, plaintiff was arrested and ordered deported for having stayed in the country passed the specified deadline and for working without authorization. See Order of Deportation, AR at 15, 17. The INS deported plaintiff from the United States on June 1, 1991. See Warrant For Deportation, AR at 19.
Plaintiff subsequently re-entered this country on August 9, 1991, with a visa issued by the Republic of Ireland. Plaintiff was again arrested on October 17, 1991, for working without authorization. See INS Record of Deportable Alien, AR at 30. Since his October 1991 arrest, plaintiff has been in deportation proceedings before an immigration judge. He is presently free on bond and seeks the privilege of voluntary departure pursuant to section 244(e) of the Immigration and Nationality Act, 8 U.S.C. § 1254(e).
On February 7, 1992, plaintiff filed the instant complaint in this Court seeking declaratory and injunctive relief to void the deportation order of June 1, 1991. Specifically, plaintiff's complaint raises a Due Process claim on the ground that he was deported without a hearing before an immigration judge. See Compl. P VII. He further contends that the VWPP violates the Equal Protection Clause because non-VWPP aliens are entitled to a deportation hearing while he was not. See id. P VIII.
A. The Jurisdictional Bar of 8 U.S.C. ...