United States District Court, Northern District of California
October 31, 2001
MARCIO DE SOUSA, PLAINTIFF,
CHARLES DEMORE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Zimmerman, United States Magistrate Judge.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff seeks a declaratory judgment that the District Director
("Director") abused his discretion when he denied plaintiff's request for
reinstatement of his F-1 non-immigrant student status. This court has
jurisdiction pursuant to the Administrative Procedures Act. See
5 U.S.C. § 702; Ghorbani v. I.N.S., 686 F.2d 784
, 791 n. 16 (9th
Both plaintiff and defendants now move for summary
judgment under Federal Rule of Civil Procedure 56(c). Because there are
no genuine issues of material fact, the parties are entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242
, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Plaintiff entered the United States as an F-1 non-immigrant student in
1994 and enrolled as a full time student at Chabot College beginning in
the fall of 1996. On June 2, 1999, plaintiff married and his spouse
petitioned for adjustment of his status to a lawful permanent resident.
Pursuant to the pending application for adjustment of his status,
plaintiff received employment authorization. Plaintiff continued to attend
Chabot College but did not enroll as a full time student for the Fall
1999 and Spring 2000 semesters. During the spring of 2000, plaintiff
separated from his wife, and she eventually withdrew her visa petition.
As a result defendants denied plaintiff's adjustment of status
application on July 31, 2000, giving plaintiff 18 days to respond. On
August 14, 2000, plaintiff responded by requesting defendants to
reinstate his F-1 non-immigrant student status. On November 20, 2000,
defendants denied plaintiff's request. Plaintiff now challenges the
merits of the Director's decision to deny his reinstatement.
"The grant or denial of reinstatement . . . is within the discretion of
the Attorney General and his delegate, the District Director." Shamsian
v. Ilchert, 534 F. Supp. 178, 182 (N.D.Cal. 1982). The district court
reviews the Director's decision
for an abuse of discretion. See Tooloee v. I.N.S., 722 F.2d 1434, 1437-38
(9th Cir. 1983). "The District Director's decision must stand unless it
so departs from an established pattern of treatment of others similarly
situated without reason, as to be arbitrary and capricious, and an abuse
of discretion." Shamsian, 534 F. Supp. at 182 (citing Nicholas v.
I.N.S., 590 F.2d 802, 808 (9th Cir. 1979)).
The Director's denial states that plaintiff was denied reinstatement
because he failed to maintain a full course of study and refers plaintiff
to his school transcript. (Defs.' Cross-Mot. for Summ.J., Ex. B).*fn2
Plaintiff contends that he was in substantial compliance with student
regulations, and therefore was entitled to reinstatement or, at the very
least, a right of adjudication and review of his application.
Specifically, plaintiff argues that because he was in compliance with the
employment authorization issued to him while he was a conditional
permanent resident based upon his marriage, he did not have to maintain
his status as a full time student. Substantial compliance with the
requirements for immigrant status as a conditional permanent resident,
even if true, cannot excuse plaintiff's failure to maintain a full course
of study pursuant to his student status. The intent for status as a
conditional permanent resident and as a non-immigrant student are
mutually exclusive; the former encompasses a desire to permanently remain
in the United States while the latter does not. Moreover, the two sets of
requirements are separate and independent. Compare 8 C.F.R. § 245
with 8 C.F.R. § 214.2 (f). Compliance with the requirements for being
a conditional permanent resident does not constitute substantial
compliance with the requirements for being a non-immigrant student. See,
e.g., Ghajar v. I.N.S., 652 F.2d 1347, 1348 (9th Cir. 1981) (holding that
substantial compliance with the requirements for maintaining
non-immigrant student status under 8 C.F.R. § 214.2 (f) does not
constitute substantial compliance with the requirements for obtaining an
extension of stay under 8 C.F.R. § 214.1 (c)). Here, plaintiff
violated specific regulations governing non-immigrant students by
allowing his course load to fall beneath the necessary twelve credits.
See 8 C.F.R. § 214.2 (f)(5)(I); (f)(6)(I)(B). That plaintiff may have
been complying with requirements applicable to conditional permanent
residents does not excuse his failure to comply with regulations
governing non-immigrant students.
Plaintiff also claims that the Director abused his discretion by
failing to fully consider his application for reinstatement of his
student status. As proof, plaintiff points to an alleged absence of
records in the file upon which the Director could have based his denial,
which plaintiff claims violated Immigration and Naturalization Service
("INS") regulation 8 C.F.R. § 214.2 (f)(1)(ii). This regulation,
however, governs the manner in which the INS services student admissions
rather than the manner in which the INS keeps students' records. Indeed,
there appears to be no regulation that specifically address the
record-keeping burden that the INS may possess with respect to
non-immigrant student records. I find that the Director had to have
reviewed the transcript before making his determination which on its face
refers to the transcript. That the transcript was not produced in
response to plaintiff's FOIA request does not undermine this finding.
Lastly, plaintiff argues that the INS should be estopped from taking
adverse action against a non-immigrant student because he relied to his
detriment on INS representations. "Estoppel may be invoked only if the
governmental conduct constitutes `affirmative misconduct.'" Bolourchian
v. I.N.S., 751 F.2d 979, 980 (9th Cir. 1984) (quoting I.N.S. v. Hibi,
414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973) (per curiam)). Plaintiff
has failed to identify any representations that may be held to constitute
Although a student who fails to maintain his student status may obtain
reinstatement under 8 C.F.R. § 214.2 (f)(16)(I), the decision is left
to the discretion of the Director. I find that the Director did not abuse
his discretion in denying plaintiff's reinstatement due to plaintiff's
failure to maintain twelve credits during the Fall 1999 and Spring 2000
semesters. Plaintiff's "[a]fter the fact justification does not excuse
his failure to comply with INS prior approval regulations, of which he
had clear notice." Ghorbani, 686 F.2d at 786.
Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for summary
judgment is DENIED and defendants' cross-motion for summary judgment is