The opinion of the court was delivered by: William Haskell Alsup, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT
In this immigration case, the Immigration and Naturalization Service (INS) found that plaintiff sought to procure admission into the United States by willful misrepresentation of material fact and was therefore inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Plaintiff filed this action for a declaratory judgment stating that the INS's finding was not supported by substantial evidence in the record of the proceedings. Both parties now move for summary judgment.*fn1 This order enters summary judgment on behalf of defendant. [ Page 2]
Plaintiff is a Chinese citizen who made his way to the United States by way of South America. He arrived in New York on November 14, 1991, traveling with a passport that had been altered to show his photograph.
In New York, the immigration officer learned that plaintiff had an altered passport. Plaintiff explained that he had been persecuted in China and had come to the United States "for freedom." He was detained and paroled into the United States and given the opportunity to apply for asylum. Plaintiff filed in 1992 an application for asylum. He since moved to California and married an American citizen.
In July 1997, based on the marriage, plaintiff applied under 8 U.S.C. § 1255 for an adjustment of status to lawful permanent resident. Under that provision, the status of an alien who was inspected and 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
8 U.S.C. § 1255(a).
In August 1998, in response to a request from the INS, plaintiff filed an application for a waiver of inadmissibility under 8 U.S.C. § 1182(i). In January 2000, the INS denied Plaintiff's request for a waiver. The decision explained that plaintiff was found inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which provides that: "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible" (Olsen Exh. F). The Attorney General had the discretion, under Section 1182(i), to waive the application of that provision if refusal to admit plaintiff to the United States would result in extreme hardship to his citizen spouse. According to the INS, the prospect of extreme hardship was not shown.
Plaintiff appealed this decision. The Office of Administrative Appeals denied the appeal [ Page 3]
in August 2000, noting that no additional documentation had been received into the record. Plaintiff filed a motion to reopen and reconsider on the ground that additional documentation had been timely submitted but was not considered.
In February 2001, the Office of Administrative Appeals, having considered the additional documentation, issued a ruling. The ruling found plaintiff inadmissible under Section 1182(a)(6)(C)(i), concluding that the "record clearly indicates that the applicant sought to procure admission into the United States by presenting a photo-substituted and altered passport in an assumed name when applying for admission into the United States" (Olsen Exh. I at 4-5) (emphasis omitted). The ruling further concluded that plaintiff failed to show that "a qualifying relative would suffer extreme hardship over and above the normal economic and social disruption involved in the removal of a family member" (id. at 5-6).
Relying on this ruling, the ENS denied in October 2002 Plaintiff's application for status as a lawful permanent resident. Plaintiff filed this declaratory-judgment action, in which both parties now move for summary judgment.*fn2
A finding of fact is reviewed for substantial evidence. Prasad v. INS, 101 F.3d 614, 616 (9th Cir. 1996). Because a "judicial determination of whether a finding of fact is supported by substantial evidence presents only an issue of law," it is "subject to disposition by summary judgment." McCall v. Andrus, 628 F.2d 1185, 1190 (9th Cir. 1980) (quoting Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964)). `"Substantial evidence' means more than a mere scintilla but less than a preponderance." Baria v. Reno, 94 F.3d ...