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PAN v. RENO

March 8, 1995

WEI QUIANG PAN, Plaintiff, -v.- JANET RENO, United States Attorney General, Defendant.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

 JOHN S. MARTIN, Jr., District Judge:

 On cross-motions for summary judgment, the parties ask the court to construe the Chinese Student Protection Act of 1992 ("CSPA" or "the Act"). The court concludes that the Act does not waive 8 U.S.C. § 1255(a)'s requirement that resident aliens seeking a status adjustment be inspected and either admitted or paroled by the Immigration and Naturalization Service ("INS"). Plaintiff's motion thus is denied and defendant's motion is granted.

 BACKGROUND

 Plaintiff is a national of the People's Republic of China ("PRC"). See Loprest Decl. Ex. A at 4, 12, 17. On or about April 28, 1989, plaintiff entered the United States in violation of § 241(a)(1)(B) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1251(a)(1)(B), by crossing the border between Canada and Vermont and evading inspection by INS agents. See id. at 5, 145-50. He has remained in the United States without interruption from then until now. See id. at 4, 10.

 On December 17, 1993, plaintiff filed this action. He seeks a judgment declaring that 8 C.F.R. 245.9(b)(6) is inconsistent with the CSPA, and that the INS' reliance on § 245.9(b)(6) when denying his status adjustment application thus was improper.

 DISCUSSION

 To decide plaintiff's claim, the court must examine the interaction between the CSPA and the statutory framework for immigration provided by the INA. Broadly speaking, the INA divides aliens admitted into the United States into two categories: "immigrants," who seek to become permanent residents, and "nonimmigrants," who enter the country 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). Section 245 of the INA, 8 U.S.C. § 1255, sets forth an expedited procedure by which an alien can adjust his status from "nonimmigrant" to "immigrant." An alien is eligible for a status adjustment under § 245 only if he "was inspected and admitted or paroled into the United States." 8 U.S.C. § 1255(a).

 Plaintiff has not been inspected and admitted or paroled, *fn1" but argues that the CSPA exempts him from that requirement of § 245. The CSPA applies to him, plaintiff stresses, because he:

 
(1) is a national of the [PRC who was in the United States on or after June 5, 1989, up to and including April 11, 1990];
 
(2) has resided continuously in the United States since April 11, 1990 other than brief, casual and innocent absences; and
 
(3) was not physically present in the [PRC] for longer than 90 days after such date and ...

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