Qi-Zhuo v. Meissner, 94-5259

• Decision Date: 21 November 1995
• Docket Number: No. 94-5259,94-5259
• Parties: Lin Qi-Zhuo, Appellant, v. Doris MEISSNER, Commissioner, United States Immigration and Naturalization Service, Appellee. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 136

70 F.3d 136

315 U.S.App.D.C. 35

Lin Qi-Zhuo, Appellant, v. Doris MEISSNER, Commissioner, United States Immigration and Naturalization Service, Appellee.

No. 94-5259.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 31, 1995.

Decided Nov. 21, 1995.

Appeal from the United States District Court for the District of Columbia (No. 93cv02172).

Mark A. Mancini, argued the cause, and filed the briefs, for appellant.

Suzanne C. Nyland, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief.

John D. Bates, Assistant United States Attorney, entered an appearance.

Before: WALD, SILBERMAN and WILLIAMS, Circuit Judges.

WALD, Circuit Judge:

This case involves the relationship between the Chinese Student Protection Act, 8 U.S.C. Sec. 1255 note (1994) ("CSPA"), and the Immigration and Nationality Act, 8 U.S.C. Sec. 1101, et seq. (1994) ("INA"). When appellant Lin Qi-Zhuo, a Chinese national who has resided in the United States since 1987, applied for adjustment of his immigration status to that of a lawful permanent resident under the CSPA, the Immigration and Naturalization Service ("INS") denied his application. The INS based its denial on the conclusion that the CSPA, which alters standard immigration requirements for certain nationals of the People's Republic of China ("PRC"), does not exempt covered nationals from the basic INA requirement that status adjustment is available only to those nonimmigrants who have been "inspected and admitted or paroled into the United States." 8 U.S.C. Sec. 1255(a). Because appellant initially entered the United States illegally, and was never "admitted" or "paroled," the INS determined that he was unqualified for the adjustment. The district court, denying Lin's request for a declaratory judgment that the CSPA permits adjustment of covered aliens regardless of their illegal entry, granted summary judgment to the INS. Because we agree that the text and structure of the CSPA makes clear that the Act does not exempt covered PRC nationals from the INA's threshold inspection requirement, we affirm the district court.

I. BACKGROUND

In general, the INA divides foreign nationals in the United States into two categories: "immigrants," who intend to remain permanently in the United States, and "nonimmigrants," who enter the country only for a limited time and purpose. See Jain v. INS, 612 F.2d 683, 686 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980); Pan v. Reno, 879 F.Supp. 18, 19 (S.D.N.Y.1995). Section 245 of the INA, 8 U.S.C. Sec. 1255, sets out the standard process by which a nonimmigrant can adjust to the status of an immigrant. Subsection (a) of Sec. 245 makes clear that adjustment is available only to those nonimmigrants who were "inspected and admitted or paroled into the United States." 8 U.S.C. Sec. 1255(a). Subsection (c) of Sec. 245 excludes from eligibility those aliens who, even though originally admitted legally into the country, have let their legal status lapse while residing here. 8 U.S.C. Sec. 1255(c) ("Subsection (a) of this section shall not be applicable to ... an alien ... who is in unlawful immigration status on the date of filing the 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.").

On April 11, 1990, in the wake of the Tiananmen Square uprising in Beijing, President Bush signed Executive Order 12,711, which temporarily suspended--until January 1, 1994--the enforced departure of any PRC national who was in the United States "on or after June 5, 1989, up to and including the date of [the] Order." Executive Order 12,711, 55 Fed.Reg. 13,897 (1990), reprinted in 8 U.S.C. Sec. 1101 note (1994) ("EO 12,711"). The Order also directed the Secretary of State and the Attorney General to provide for the "maintenance of lawful status for purposes of adjustment of status ... for such PRC nationals who were in lawful status at any time on or after June 5, 1989." EO 12,711, at Sec. 3(b).

In 1992, Congress passed the CSPA, which permanently altered the standard INA adjustment process for Chinese nationals who met the statute's specific residency requirements. ¹ Subsection (a) of the CSPA outlines the special eligibility rules that apply with respect to "an alien described in subsection (b) [who] applies for adjustment of status under section 245 of the [INA]." CSPA Sec. 2(a). Subsection (b) defines "aliens covered" in terms of three requirements: first, the alien applying for adjustment must be a PRC national as described in EO 12,711 (i.e., must have been in the United States on or after June 5, 1989, up to and including the date of the Order); second, the PRC national must have resided continuously in the United States since April 11, 1990; and third, he or she must not have been physically present in the PRC for more than 90 days between April 11, 1990, and the date of enactment of the CSPA (October 9, 1992). CSPA Sec. 2(b).

The parties to this dispute agree that appellant qualifies as a covered alien under CSPA Sec. 2(b), and therefore his application should be treated under the rules set forth in the CSPA rather than the usual INA process. The parties disagree, however, as to the scope of these rules, set out in subsection (a), authorizing adjustment. CSPA Sec. 2(a). Among the "rules" that apply to covered aliens seeking adjustment under Sec. 245 is an express exemption from Sec. 245(c) of the INA, which under normal circumstances makes adjustment unavailable to nonimmigrants whose legal status has lapsed at the time of application. CSPA Sec. 2(a)(5). Thus, the CSPA is clear that a protected PRC national as distinguished from another type of nonimmigrant, can apply for adjustment even if he or she has not maintained a lawful immigration status.

The heart of appellant's case is his claim that, in addition to its explicit exemption from Sec. 245(c) of the INA, the CSPA contains an implicit exemption for covered aliens from the threshold inspection requirement of Sec. 245(a). To support his theory, Lin argues that subsection (b) of the CSPA, outlining the qualifications for "aliens covered," provides an exhaustive and exclusive list of the requirements for adjustment of status under the Act, and does not include lawful entry as a prerequisite. We agree with the district court that the plain meaning of the CSPA is otherwise and that Lin's argument must fail.

II. DISCUSSION

A. The Language and Structure of the Statute

An endlessly reiterated principle of statutory construction is that all words in a statute are to be assigned meaning, and that nothing therein is to be construed as surplusage. See, e.g., United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955); United States v. Herbert Bryant, Inc., 543 F.2d 299, 307 & n. 32 (D.C.Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977). For purposes of this case, we must interpret two distinct subsections of the CSPA in a manner that gives meaning to both. Subsection (a) catalogs the special "rules" that apply to covered Chinese nationals who seek adjustment under Sec. 245 of the INA; among these rules are several exclusions from the standard immigration provisions, including an express exemption from the requirements of Sec. 245(c) of the INA. Subsection (b) follows with its definition of "aliens covered" by the Act, which outlines three residency requirements for coverage. If, as appellant claims, the residency requirements of subsection (b) alone entitle an alien to adjustment, the "rules" established in subsection (a), CSPA Sec. 2(a)(1)-(5), including the express exemption from the requirements of INA Sec. 245(c), would be rendered entirely superfluous.

Lin's theory that subsection (b)'s residency specifications constitute an exhaustive list of the prerequisites for status adjustment under the CSPA violates another principle of statutory construction--that an item which is omitted from a list of exclusions is presumed not to be excluded. See United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1989); cf. United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1232 (D.C.Cir.), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). The CSPA contains express exemptions from several standard immigration provisions; for example, the Act provides an exemption from certain paragraphs of Sec. 212 of the INA dealing with labor certification and documentation requirements (CSPA Sec. 2(a)(3)(A)); the per country numerical limits on family-sponsored and employment-based immigrants established by Sec. 202(a)(2) of the INA (CSPA Sec. 2(a)(4)); and the requirements of Sec. 245(c) of the INA barring from adjustment certain aliens, such as those whose legal status has lapsed, who would otherwise qualify under Sec. 245(a) (CSPA Sec. 2(a)(5)). Noticeably absent from this list is any mention of Sec. 245(a), and we decline Lin's invitation to read into the CSPA an exemption that Congress failed to include.

The only other court which has addressed this precise issue agreed with our reading of the CSPA, holding that "[i]f Congress had intended that everyone who was covered by the CSPA would qualify automatically for a status adjustment--regardless of any additional restriction imposed by Sec. 245--it would not have been necessary for the legislators to add a provision to the CSPA stating that Sec. 245(c) did not apply to covered PRC nationals." Pan, 879 F.Supp. at 19-20.

Lin's argument to the contrary--that the language of the CSPA explicitly defines covered aliens only by the three residency requirements established in subsection (b) of the Act--misses the mark. There is no dispute that Lin qualifies as an "alien...