Chan v. Reno
| Citation | 916 F. Supp. 1289 |
| Decision Date | 13 February 1996 |
| Docket Number | No. 95 Civ. 2586.,95 Civ. 2586. |
| Parties | Kai Wu CHAN, Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan, Plaintiffs, v. Janet RENO, United States Attorney General, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Theodore N. Cox, New York City, for Plaintiffs.
Mary Jo White, United States Attorney for the Southern District of New York (F. James Loprest, Jr., Special Assistant US Attorney, of counsel), New York City, for Defendant.
Defendant Janet Reno, United States Attorney General (the "Government"), has moved to dismiss the Amended Complaint of Plaintiffs Kai Wu Chan, Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan (collectively, "Plaintiffs"), pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the grounds that it is not ripe for review by reason of Plaintiffs' failure to exhaust administrative remedies and that this Court lacks subject matter jurisdiction. The Government has moved in the alternative to dismiss, pursuant to Rule 12(b)(6), Fed. R.Civ.P., on the grounds that Plaintiffs have failed to state a claim upon which relief can be granted.
Plaintiffs have moved, pursuant to Rule 15(a), Fed.R.Civ.P., for leave to amend the Amended Complaint, and pursuant to Rule 56(c), Fed.R.Civ.P., for summary judgment.
For the reasons set forth below, the Government's motion to dismiss for lack of jurisdiction will be granted, Plaintiffs' motion for summary judgment will be denied as moot, and Plaintiffs' motion to amend will be denied.
Kai Wu Chan filed his Initial Complaint on April 14, 1995, seeking a declaratory judgment reversing the denial of his application for adjustment of his immigration status and a mandatory injunction that the I.N.S. adjust his status to that of lawful permanent resident ("LPR") under the Chinese Student Protection Act of October 9, 1992, Pub.L. No. 102-404, 106 Stat. 1969-1971 (1992) (the "CSPA"), see 8 U.S.C. § 1255. Kai Wu Chan amended that Initial Complaint as of right on May 31, 1995 (the "First Amended Complaint"), adding Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan as plaintiffs. The Government answered on July 24, 1995.
On August 23, 1995, Plaintiffs served the Government with a proposed "Second Amended Complaint" dated May 25, 1995, naming eight additional plaintiffs.
On September 20, 1995, the Government filed its notice of motion to dismiss the First Amended Complaint, accompanied by a memorandum of law. On September 29, 1995, Plaintiffs filed a memorandum of law in support of a motion for summary judgment and in opposition to the Government's motion to dismiss. On October 13, 1995, the day of oral argument, Plaintiffs filed their motions for summary judgment on the First Amended Complaint and to amend that complaint.
On the invitation of the Court, the parties supplemented the record with further submissions after argument. On November 13, 1995, the Government submitted its reply memorandum in support of its motion to dismiss the First Amended Complaint and in opposition to Plaintiffs' motions. That reply memorandum addressed its arguments regarding the motion to dismiss and for summary judgment to the substance of the First Amended Complaint. On November 22, 1995, Plaintiffs submitted their reply memorandum "for summary judgment and in opposition to the motion to dismiss the complaint". This memorandum addressed itself largely to the substance of the Proposed Fourth Amended Complaint, in addition to the substance of the First Amended Complaint.
Plaintiffs' Rule 3(g) statement was submitted on December 18, 1995, and filing was granted nunc pro tunc. Further letter submissions were accepted from the parties through January 30, 1996.
Plaintiffs are nationals of the People's Republic of China ("China" or the "PRC") residing in the United States. All entered the United States without inspection on or before April 11, 1990.
Janet Reno is the Attorney General and head of the Department of Justice of the United States.
The facts set forth here do not constitute findings of fact by the Court. They are drawn from the allegations made by Plaintiffs in the First Amended Complaint.
Section 245 of the I.N.A., 8 U.S.C. § 1255, allows an alien to apply for status as a lawful permanent resident in the United States rather than requiring him to return to his own country to apply for such status. This is known as "adjustment of immigration status" or "status adjustment". Section 245 provides in pertinent part:
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.
INA § 245, 8 U.S.C. § 1255(a). Because of the special benefit it confers upon an alien who would otherwise be required to depart from the United States to apply for an immigrant visa and then return, Section 245 adjustment is considered to be "extraordinary relief." Howell v. I.N.S., 72 F.3d 288, 290 (2d Cir. Dec. 20, 1995) (quoting Jain v. I.N.S., 612 F.2d 683, 687 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980)); see also Randall v. Meese, 854 F.2d 472, 474 (D.C.Cir.1988) (Ruth Bader Ginsburg, J.) (quoting Jain, 612 F.2d at 687), cert. denied, 491 U.S. 904, 109 S.Ct. 3186, 105 L.Ed.2d 694 (1989); Rahman v. McElroy, 884 F.Supp. 782, 785 (S.D.N.Y. 1995).
Section 245(a) requires explicitly that an alien must have been inspected, admitted, or paroled into the United States at the alien's last entry in order to receive status adjustment. "Parole" is, in essence, advance authorization for entry, which may be applied for by an alien before leaving the United States in anticipation of a return voyage to this country. By virtue of Section 245(a), those who enter this country illegally are not generally eligible for status adjustment.
In the spring of 1989, over one million peaceful protestors gathered in Beijing's Tiananmen Square calling for democracy in China and protesting rampant corruption. On June 4, 1989, harsh military repression crushed the democracy movement. The attention of the United States and its President and Congress was focussed on the plight of Chinese nationals in the United States who were, or could eventually become, deportable. Among them were students; non-students in temporary, lawful status; and those who had come to the United States without lawful status. Some Chinese nationals had come to the United States fearing persecution based on China's coercive family-planning policy.
The President of the United States is expressly authorized to increase refugee admissions, INA § 207, 8 U.S.C. § 1157, or to suspend the "entry of any aliens or of any class of aliens...." INA § 212(f), 8 U.S.C. § 1182(f). In response to a foreign crisis, the President can authorize the entry of particular groups or extend temporary protection to members of such groups who may already be in the United States, even in the absence of eligibility according to family-based immigration categories.
On April 11, 1990, President Bush issued Executive Order 12711 ("E.O. 12711" or the "Executive Order"), entitled "Policy Implementation With Respect to Nationals of the People's Republic of China." Executive Order 12711, 55 Fed.Reg. 13897-88 (1990), reprinted in 1992 U.S.C.C.A.N. 1356. The Executive Order provided expansive protection for Chinese nationals. All Chinese nationals in the United States at the time — whether of lawful or unlawful status — were included in the Executive Order, in its Section 1. See 1992 U.S.C.C.A.N. at 1356-57. For Chinese nationals who had entered the United States without authorization, the effect of the Executive Order was to stay deportation proceedings against them until January 1, 1994. They thus were placed in a position known as Deferred Enforcement of Departure ("DED"). Plaintiffs were among those who applied for and benefitted from receiving DED under the Executive Order.
The Chinese Student Protection Act was passed in September 1992, and signed into law the following month. See 1992 U.S.C.C.A.N. 1355-61. The CSPA amended INA Section 245 — the statute governing status adjustment for aliens in general — by providing an avenue for adjustment to at least some of those persons whose enforced departure from the United States had been deferred as a result of Executive Order 12/11. See 55 Fed.Reg. 13,897 (Apr. 11, 1990). The CSPA took effect on July 1, 1993, and provided for an application period of one year for the filing of adjustment applications. CSPA § 2(e); 106 Stat. 1971.
Section 2(a) of the CSPA conferred significant advantages upon qualified PRC nationals in the United States seeking adjustment to LPR status. For example, Section 2(a) exempted qualifying Chinese nationals from the requirements of Section 245(c) of the I.N.A., which generally makes adjustment unavailable to aliens whose legal status has lapsed at the time of application. CSPA § 2(a)(5). In addition, Section 2(a) permitted the Attorney General to bypass national quotas, id. at § 2(a)(4), and the requirement that an alien have an immigrant visa number, id. at § 2(a)(3).
Section 2(a) accorded these benefits to aliens described in CSPA § 2(b). Section 2(b) required that the applicant 1) be a Chinese national described in Executive Order 12711 (that is, have been present in the...
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