imply by negative inference that INA § 245(a) applies. They contend further that the legislative history indicates that the removal of barriers to adjustment set out in INA § 245(c) was added in conference purposely to expand the scope of eligibility. Moreover, argue Plaintiffs, the legislative history also acknowledges the close kinship between the Executive Order and the CSPA.
As a final argument in support of their claim that the CSPA did not mean to require inspection and admission or parole, Plaintiffs address traditional canons of interpretation. They contend that the canons require that doubt as to the correct construction of a statute should be resolved in favor of an alien.
II. Plaintiffs' Argument that Cable 5 Violates the Executive Order
As a second argument in support of their claim for relief, Plaintiffs argue that Cable 5 -- the I.N.S. directive constricting the availability of advance parole to Chinese nationals, reversing earlier policy -- violated the Executive Order, which had the force of law.
I. Standard of Review
The exclusion and admission of aliens are fundamental acts of sovereignty, and authority over these areas is vested exclusively in the legislative and executive branches of government. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982) ("control over matters of immigration is a sovereign prerogative"); United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982) ("the power to regulate immigration -- an attribute of sovereignty essential to the preservation of any nation -- has been entrusted by the Constitution to the political branches); Galvan v. Press, 347 U.S. 522, 531, 98 L. Ed. 911, 74 S. Ct. 737 (1954) ("that the formulation of [immigration] policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government"); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 53 L. Ed. 1013, 29 S. Ct. 671 (1909) ("over no conceivable subject is the legislative power of Congress more complete" than the processing of aliens).
Accordingly, the Supreme Court has repeatedly instructed that judicial review in immigration matters is narrowly circumscribed. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 1449, 123 L. Ed. 2d 1 (1993); Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977); Kleindienst v. Mandel, 408 U.S. 753, 766, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972); Rahman, 884 F. Supp. at 785 (S.D.N.Y 1995). As the Supreme Court has observed, "Enforcing the immigration laws, and the conditions for residency in this country, is becoming more difficult. . . . Moreover, the I.N.S. is the agency primarily charged by Congress to implement the public policy underlying these laws. . . . Appropriate deference must be accorded its decisions." I.N.S. v. Miranda, 459 U.S. 14, 19, 74 L. Ed. 2d 12, 103 S. Ct. 281 (1982) (citations omitted); see also Zhang v. Slattery, 55 F.3d 732, 748 (2d Cir. 1995) ("it is not the role of the federal courts to administer the executive branch" in immigration matters); Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir. 1993) ("The Supreme Court has cautioned against 'improvidently encroaching on the authority which the . . . Act confers upon the Attorney General and his delegates'" (citations omitted)).
Because Congress has charged the Attorney General with the responsibility for interpreting and implementing the immigration laws, such as the CSPA and INA § 245, at issue in this case, see 8 U.S.C. § 1103(a); Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 125 L. Ed. 2d 128, 113 S. Ct. 2549, 2559-60 (1993), her interpretation of those laws is entitled to this Court's deference. See, e.g., Zhang, 55 F.3d at 749. Where reasonable, the Attorney General's interpretation must be sustained, even if a court finds that the interpretation is not "the only reasonable one" or where "had the question arisen in the first instance in judicial proceedings," the court would have reached a different result. See Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965); Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 233, 92 L. Ed. 2d 166, 106 S. Ct. 2860 (1986); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (where the statute is unclear, "the question for the court is whether the agency's answer is based on a permissible construction of the statute"); Isaacs v. Bowen, 865 F.2d 468, 472 (2d Cir. 1989); Weeks v. Quinlan, 838 F.2d 41, 43 (2d Cir. 1988).
II. The Issues Presented in the First Amended Complaint Are Not Justiciable
Plaintiffs assert jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 704, which provides that "agency actions made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review," and 28 U.S.C. § 1331, which provides district courts with original jurisdiction over federal questions. The I.N.A., the CSPA, and the regulations promulgated under them, paired with the doctrine of exhaustion of administrative remedies, render Plaintiffs' claims unripe for review and deprive the Court of subject matter jurisdiction. The First Amended Complaint is, therefore, non-justiciable, and it will be dismissed.
This matter is not one of settled law. "The Supreme Court has not yet grappled with the question whether, outside the context of a deportation proceeding or order, district director status adjustment or asylum application denials are amenable to court review." Randall, 854 F.2d at 482 n.16. Our Court of Appeals recently declined to pass on the question of whether a district court possesses subject matter jurisdiction to review a denial of adjustment of status before the applicant is subject to deportation proceedings. Howell, slip op. at 8977 n.5.
This is not to say that some district courts, and some courts of appeals in other circuits, have not addressed this and similar questions. The courts that have been asked to determine if a district court has jurisdiction to review a district director's denial of adjustment of status have differed in their conclusions. Some have held there to be jurisdiction. See, e.g., Jaa v. United States I.N.S., 779 F.2d 569 (9th Cir. 1986); Reid v. I.N.S., No. 91 Civ. 6535, 1993 U.S. Dist. LEXIS 16515, 1993 WL 267278 (S.D.N.Y. Nov. 17, 1993). Yet, as our Court of Appeals has noted, those cases' applicability here is limited by their reliance on the Supreme Court's decision in Cheng Fan Kwok v. I.N.S., 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). Howell, slip op. at 8975. Cheng Fan Kwok did not address directly whether district courts have jurisdiction to review a district director's denial of an application for adjustment of status; rather, it held that judicial review is available at the district court level, before the court of appeals level, when a district director denies a stay of deportation. Howell, slip op. at 8975 (citing Cheng Fan Kwok at 210); see Randall, 854 F.2d at 482 n.16.
Other courts have held district courts to lack jurisdiction over district directors' denials of Section 245 status adjustments. They have generally done so, however, where deportation proceedings have already commenced. See id. at 472. In one case from the Seventh Circuit, the court did hold that a district court properly declined to exercise jurisdiction because the claim was not ripe for judicial review, even though deportation proceedings had not yet commenced. Massignani v. I.N.S., 438 F.2d 1276 (7th Cir. 1971). These courts have held that because the alien challenging the adjustment denial has opportunity for de novo administrative consideration -- and subsequent appellate review -- a direct challenge to an adjustment denial constitutes a failure to exhaust administrative remedies, making the claim unripe for review. See Rahman v. McElroy, 884 F. Supp. 782, 785 (S.D.N.Y. 1995) (dismissing complaint of aliens simultaneously seeking adjustment and immigrant visas where the adjustment applications had not yet been adjudicated, and holding that "failure to seek . . . administrative review before challenging an adjustment denial in a district court constitutes a failure to exhaust administrative remedies"); Yeung v. Reno, 868 F. Supp. 53, 57 (S.D.N.Y. 1994), aff'd, 57 F.3d 1062 (2d Cir. 1995) ("This court has concluded that its direct review of an adjustment determination is precluded by the requirement of exhaustion of remedies." (citations omitted)); Augoustinakis v. United States I.N.S., 693 F. Supp. 1554, 1556 (S.D.N.Y. 1988) (holding that, because deportation proceedings may produce a different outcome, any "decision [by this Court] regarding the appropriateness of the District Director's refusal to exercise his discretion to adjust the plaintiff's status would constitute an advisory opinion," which is prohibited (citations omitted)).
As a general rule, subject matter jurisdiction in cases "arising under" the I.N.A. is granted by statute. 8 U.S.C. § 1329 provides, "The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of" Subchapter II of the I.N.A. That subchapter includes the section governing adjustment of status." 8 U.S.C. § 1255; see Augoustinakis, 693 F. Supp. at 1555.
The doctrine of exhaustion of administrative remedies, however, circumscribes the jurisdiction granted by these provisions and the Administrative Procedure Act. That doctrine was described by our Court of Appeals in Howell:
"a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself." Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938)) The requirement of exhaustion "may arise from explicit statutory language or from an administrative scheme providing for agency relief." Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993). If a party fails to exhaust administrative remedies, then the court may dismiss the action because subject matter jurisdiction does not exist. DiLaura v. Power Auth., 982 F.2d 73, 79 (2d Cir. 1992).
Howell, slip op. at 8973.
Howell explored the consequences of this doctrine where an application for adjustment of status is denied. The court upheld a district court's ruling that it lacked jurisdiction to review the I.N.S.'s denial of an alien's application to adjust immigration status to that of a lawful, permanent United States resident, pursuant to section 245(a). There, unlike here, the I.N.S. had commenced deportation proceedings against an alien. Under those circumstances, held the Howell court, the alien "has the opportunity, pursuant to the regulations, to renew her application for adjustment of status before an immigration judge," and must therefore exhaust administrative remedies before seeking judicial review. See Howell, slip op. at 8977.
As in Howell, here both statutory language and an administrative scheme invoke the doctrine of administrative exhaustion. The regulations promulgated under the I.N.A. create several levels of review. First, they provide that if an application is denied initially by the I.N.A. district director, "no appeal lies from the denial of an application by the director, but the applicant retains the right to renew his or her application in [deportation proceedings]." 8 C.F.R. § 245.2(a)(5)(ii); see Howell, slip op. at 8972-73; Jain, 612 F.2d at 689-90; Randall, 854 F.2d at 474 ("the regulations preclude a direct administrative appeal" from denial of a status adjustment application).
Deportation proceedings do not commence automatically upon denial of an application for adjustment of status; instead, they are "commenced by the filing of an order to show cause with the Office of the Immigration Judge." 8 C.F.R. § 242.1(a); see Howell, slip op. at 8972. However, once an alien is identified for deportation, he has three more levels of review available. First, he "may apply to the immigration judge for . . . adjustment of status under section 245 . . . ." 8 C.F.R. § 242.17(a). At this initial stage of proceedings to determine deportability, "the alien is entitled to a de novo review of his application . . . ." Jain, 612 F.2d at 689-90; see Randall, 854 F.2d at 474. Indeed, "at this stage, the alien is accorded a plenary hearing [at which] he has the right to be represented by counsel, to introduce evidence, and to cross-examine. . . ." Id. (citing 8 C.F.R. §§ 242.17(a), 245.2(a)(5)(ii)).
If the immigration judge denies the alien's application for adjustment during deportation proceedings, two levels of appeal remain. The first avenue is to the Board of Immigration Appeals (the "B.I.A."). 8 C.F.R. §§ 3.1(b)(2), 242.21. Finally, by prescription of the I.N.A. itself, a final appeal can then made to a circuit court of appeals. 8 U.S.C. § 1105a(a); see Randall, 854 F.2d at 475. There, "the petition shall be determined solely upon the administrative record upon which the deportation order is based[,] and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4).
In essence, then, an alien seeking adjustment of status has a right to four reviews, two of which are de novo -- one in the course of the initial application, the other in the course of deportation -- and two of which are appellate reviews of the second de novo proceeding. Plaintiffs, because they have not been subjected to deportation proceedings, have not yet exhausted their administrative remedies, and if the doctrine of exhaustion of administrative remedies applies, this Court lacks subject matter jurisdiction.
There are, however, as noted by the Howell court, "established exceptions to the exhaustion rule." Specifically:
Exhaustion of administrative remedies may not be required when: (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.
Howell, slip op. at 8973-74 (quoting Guitard, 967 F.2d at 741 (internal quotations omitted)). None of these exceptions applies to the First Amended Complaint.
First, the remedies available to Plaintiffs provide a genuine opportunity for adequate relief. In Jain, 612 F.2d 683, an alien denied section 245 adjustment of status by a district director argued to our Court of Appeals (on appeal from a decision of the B.I.A.) that he had been denied due process because he was unable to appeal the original denial of that application prior to deportation proceedings. Id. at 689. The Court of Appeals found the argument to lack merit, because:
the alien is entitled to a de novo review of his application in the context of deportation proceedings. [8 C.F.R. § 245-2(a)(4).] We consider this dual opportunity to present a section 245 application to provide ample process, particularly in light of the discretionary nature of section 245 relief. The fact that the second consideration of the application takes place within the context of a deportation proceeding is irrelevant.