Bhujel v. Wolf, Civil No. 18-12644-LTS

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation444 F.Supp.3d 268
Docket NumberCivil No. 18-12644-LTS
Parties Gyan Bahadur BHUJEL, Plaintiff, v. Chad WOLF, Acting Secretary, United States Department of Homeland Security, et al., Defendants.
Decision Date13 March 2020

Susan B. Church, Demissie & Church, Cambridge, MA, for Plaintiff.

Frank Menna, P. Angel Martinez, United States Department of Justice, Washington, DC, for Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

SOROKIN, District Judge

Gyan Bahadur Bhujel, a citizen of Nepal who has resided in the United States for nearly seventeen years, has sued the United States Citizenship and Immigration Services ("USCIS"), its director, and the Secretary of the United States Department of Homeland Security following the denial of his application for an adjustment of status to that of a lawful permanent resident. Doc. No. 1. Pending before the Court are the defendants' motion to dismiss and for summary judgment, Doc. No. 11, and Bhujel's cross-motion for summary judgment, Doc. No. 16. For the reasons that follow, both motions are ALLOWED in part and DENIED in part.

I. BACKGROUND

The pertinent facts are not in dispute. See generally Doc. No. 10 (noting the filing of the administrative record);2 Doc. No. 16-3 (reflecting the parties' "Unified Statement of Material Undisputed Facts"). Bhujel was admitted to the United States on April 16, 2003 under a temporary non-agricultural worker nonimmigrant visa. Doc. No. 16-3 ¶ 2. The visa expired on December 31, 2003, but Bhujel remained. Id. ¶¶ 2-3. Between 2004 and 2015, he continued to live and work in the United States without authorization. Id. ¶ 4.

Following a devastating "magnitude 7.8 earthquake [that] struck Nepal" on April 25, 2015, and "numerous" severe aftershocks, Nepal was designated for Temporary Protected Status ("TPS") under 8 U.S.C. § 1154a. Designation of Nepal for Temporary Protected Status, 80 Fed. Reg. 36,346 (June 24, 2015). Bhujel, a Nepalese citizen, applied for TPS on July 13, 2015. Doc. No. 16-3 ¶ 5. On May 1, 2016, with that application still pending, USCIS approved Bhujel for "advanced parole," authorizing him to depart the United States and return between then and December 24, 2016. Id. ¶ 7; A.R. at 138.3 Bhujel then travelled to Nepal to visit his family, departing from Boston on May 16, 2016. Doc. No. 16-2; Doc. No. 16-3 ¶ 8. On June 15, 2016, while Bhujel was in Nepal, USCIS granted his application for TPS. Doc. No. 16-3 ¶ 6; A.R. at 172-73. He returned and was paroled back into the United States on July 26, 2016. Doc. No. 16-3 ¶ 9; A.R. at 137.4

On January 5, 2017, after USCIS approved his employer's "Immigrant Petition for Alien Worker," Bhujel applied for an adjustment to LPR status. Doc. No. 16-3 ¶¶ 10-11; A.R. at 86, 260-68. His application was denied on October 18, 2017; he sought reconsideration, but on January 10, 2018 USCIS affirmed its denial. Doc. No. 16-3 ¶¶ 12-14; A.R. at 183-84, 243-44. Bhujel reapplied for an adjustment to LPR status in March 2018, but USCIS denied his request on September 10, 2018. Doc. No. 16-3 ¶¶ 15-16; A.R. at 1-4.

Bhujel filed his Complaint in this Court on December 27, 2018, requesting a writ of mandamus and challenging the agency's denials under the Administrative Procedures Act ("APA"). Doc. No. 1. The defendants sought dismissal of the mandamus claim and summary judgment on the APA claim, Doc. No. 11, and Bhujel cross-moved for summary judgment, Doc. No. 16. The motions are fully briefed. No party has requested oral argument.

II. LEGAL STANDARD
A. Dismissal and Summary Judgment

To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint "must provide fair notice to the defendants and state a facially plausible legal claim." Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The pleader must " ‘show’ an entitlement to relief" by including in the complaint "enough factual material ‘to raise a right to relief above the speculative level’ " if the facts alleged are accepted as true. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); accord Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 8(a).

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a party "has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.’ " Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). The Court is "obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993).

Judicial review of whether an agency action was "arbitrary and capricious" under the APA is "narrow, and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The courts, however, are "the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron, U.S.A., Inc. v. Nat'l Res. Defense Council, Inc., 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If "Congress has directly spoken to the precise question at issue" and "unambiguously expressed [its] intent," both the court and the agency are bound by the plain language Congress chose, and no deference is owed to an agency's contrary interpretation. Id. at 842-43 & n.9, 104 S.Ct. 2778.

B. Statutory Framework

This case concerns the interplay between two sections of the Immigration and Nationality Act ("INA"): 8 U.S.C. § 1254a, "governing TPS for noncitizens living in the United States who cannot safely return home to a war-torn or disaster-ridden country," Ramirez v. Brown, 852 F.3d 954, 955 (9th Cir. 2017) ; and 8 U.S.C. § 1255, governing adjustment to LPR status for certain noncitizens "inspected and admitted or paroled into the United States," § 1255(a). To resolve a dispute as to the meaning of statutes, the Court first looks to the plain language of the statutes themselves, which provides the best evidence of what Congress intended. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) ; accord Medina v. Beers, 65 F. Supp. 3d 419, 426 (E.D. Pa. 2014).

A noncitizen from a country the Attorney General has designated under § 1254a(b) who meets the eligibility requirements enumerated in § 1254a(c) may apply for TPS. Successful applicants receive, by virtue of their TPS, protection against removal "from the United States during the period in which such status is in effect," and authorization to work in the United States during that time. § 1254a(a)(1)(A)-(B), (2). The TPS statute further describes the "[b]enefits and status" accorded successful applicants as follows:

During a period in which an alien is granted temporary protected status under this section
(1) the alien shall not be considered to be permanently residing in the United States under color of law;
(2) the alien may be deemed ineligible for public assistance by a State ... or any political subdivision thereof which furnishes such assistance;
(3) the alien may travel abroad with the prior consent of the Attorney General; and
(4) for purposes of adjustment of status under section 1255 of this title and change of status under section 1258 of this title, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.

§ 1254a(f) (emphasis added).

The process and conditions governing the adjustment to LPR status are set out in § 1255.

The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

§ 1255(a) (emphasis added).

Eight categories of noncitizens are not entitled to discretionary adjustments of status, even if they satisfy § 1255(a)'s requirements. Those categories include:

subject to subsection (k), an alien ... who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status ... or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; ... [and] any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title,5 or who has otherwise violated the terms of a nonimmigrant visa.

§ 1255(c)(2), (8) (emphasis added). However, a noncitizen seeking an employment-based status adjustment may apply and receive one "notwithstanding subsection (c)(2) ... and (c)(8)" if:

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission; [and]
(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days—(A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise
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