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CHAN v. RENO

March 5, 1996

GEE-KWONG CHAN, et al., Plaintiffs,
v.
JANET RENO, et al., Defendants.



The opinion of the court was delivered by: ILLSTON

 On February 2, 1996, the Court heard argument on defendants' *fn1" motion to dismiss and plaintiffs' motion for class certification and summary judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS defendants' motion to dismiss and, accordingly, does not reach plaintiffs' motions.

 BACKGROUND

 Plaintiffs and proposed class members (collectively "plaintiffs") are Chinese nationals who entered the United States on or before April 11, 1990, without being "inspected and admitted or paroled" by the Immigration and Naturalization Service (INS). Plaintiffs were protected from enforced departure from the United States until January 1, 1994 by an executive order issued in April 1990 by President Bush following the June 4, 1989 Tiananmen Square massacre. *fn2" In 1992, Congress enacted the Chinese Student Protection Act ("CSPA"), codified at 8 U.S.C.A. § 1255 *fn3" , which established a process for certain Chinese nationals to adjust their immigration status. Under the CSPA, Chinese nationals who had been inspected and admitted or paroled into the United States could file applications with the INS between July 1, 1993 and June 30, 1994 to have their immigration status adjusted to that of "permanent resident alien."

 Plaintiffs filed timely and proper applications for adjustment of status under CSPA. The INS denied plaintiffs' applications because the plaintiffs had entered the United States without being inspected and admitted or paroled. *fn4" Plaintiff Chan filed a motion for reconsideration of the denial of his CSPA application, arguing that the INS failed to properly apply section 1255(i) of Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i) (hereinafter "section 245(i)"), which took effect on October 1, 1994. Under section 245(i), aliens who entered the United States without inspection by the INS are eligible for adjustment of status if they satisfy certain statutory requirements, including eligibility for an immediate visa.

 Specifically, plaintiffs challenge the INS's interpretation of section 245(i) in the INS's adjudication of plaintiffs' CSPA applications. The INS denied plaintiffs' CSPA applications on the grounds that plaintiffs were still required to meet the requirements of 8 C.F.R. § 245.9(b)(6), namely, that they were "inspected and admitted or paroled" upon entry into the United States despite the provision of section 245(i). Plaintiffs acknowledge that federal courts have sustained the INS's promulgation and interpretation of 8 C.F.R. § 245.9(b)(6) several times: Lin v. Meissner, 855 F. Supp. 4 (D. D.C. 1994), affirmed, F.3d , 1995 WL 686067 (D.C. Cir. 1995); Pan v. Reno, 879 F. Supp. 18 (S.D.N.Y. 1995), appeal withdrawn, Dkt. No. 95-6087 (2nd Cir., Aug. 7, 1995); Tang v. Reno, Case No. C-94-3134-VRW (N.D. Cal. Feb. 13, 1995), appeal pending, Dkt. No. 95-15421 (9th Cir., March 10, 1995).

 Nevertheless, plaintiffs contend that defendants have violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706(2)(A),(C); the CSPA; section 245(i); 8 C.F.R. § 245.10(d); and the equal protection and the due process clauses of the Fifth Amendment. Plaintiffs allege that defendants acted unlawfully in the following specific manners:

 
2) Defendants failed to notify plaintiffs of the opportunity under INA § 245(i) and 8 C.F.R. § 245.10(d) to amend their CSPA applications that were pending on or after October 1, 1994 by submitting INS Form I-485 Supplement A and the required fee.
 
3) Defendants unlawfully promulgated 8 C.F.R. § 245.10(e) which operated to deny plaintiffs' CSPA applications under INA § 245(i). Pl.s' .J. Memo. at 4-6.

 DISCUSSION

 Plaintiffs concede the validity of the requirement that they must have been "inspected and admitted or paroled" into the United States in order to obtain a change in status under the CSPA, and admit that they have not met this requirement. However, they argue that a favorable change occurred in the INA which would allow them to change their status despite not having been inspected and admitted or paroled. Plaintiffs argue that section 245(i), enacted on October 1, 1994, allows an applicant who had not been inspected and admitted or paroled to apply for a change in his or her immigration status.

 Section 245(i) *fn5" states, in relevant part:

 
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States who --
 
(A) entered the United States without inspection; or
 
(B) is within one of the classes enumerated in subsection (c) of this section,
 
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equalling five times the fee required for the processing of applications under this section as of the date of receipt of the application, but such sum shall not be required from a child under the age of seventeen . . .
 
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if --
 
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for ...

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