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February 13, 1996


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendant Janet Reno, United States Attorney General (the "Government"), has moved to dismiss the Amended Complaint of Plaintiffs Kai Wu Chan, Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan (collectively, "Plaintiffs"), pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the grounds that it is not ripe for review by reason of Plaintiffs' failure to exhaust administrative remedies and that this Court lacks subject matter jurisdiction. The Government has moved in the alternative to dismiss, pursuant to Rule 12(b)(6), Fed. R. Civ. P., on the grounds that Plaintiffs have failed to state a claim upon which relief can be granted.

 Plaintiffs have moved, pursuant to Rule 15(a), Fed. R. Civ. P., for leave to amend the Amended Complaint, and pursuant to Rule 56(c), Fed. R. Civ. P., for summary judgment.

 For the reasons set forth below, the Government's motion to dismiss for lack of jurisdiction will be granted, Plaintiffs' motion for summary judgment will be denied as moot, and Plaintiffs' motion to amend will be denied.

 Prior Proceedings

 Kai Wu Chan filed his Initial Complaint on April 14, 1995, seeking a declaratory judgment reversing the denial of his application for adjustment of his immigration status and a mandatory injunction that the I.N.S. adjust his status to that of lawful permanent resident ("LPR") under the Chinese Student Protection Act of October 9, 1992, Pub. L. No. 102-404, 106 Stat. 1969-1971 (1992) (the "CSPA"), see 8 U.S.C. § 1255. Kai Wu Chan amended that Initial Complaint as of right on May 31, 1995 (the "First Amended Complaint"), adding Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan as plaintiffs. The Government answered on July 24, 1995.

 On August 23, 1995, Plaintiffs served the Government with a proposed "Second Amended Complaint" dated May 25, 1995, naming eight additional plaintiffs.

 On September 20, 1995, the Government filed its notice of motion to dismiss the First Amended Complaint, accompanied by a memorandum of law. On September 29, 1995, Plaintiffs filed a memorandum of law in support of a motion for summary judgment and in opposition to the Government's motion to dismiss. On October 13, 1995, the day of oral argument, Plaintiffs filed their motions for summary judgment on the First Amended Complaint and to amend that complaint.

 On the invitation of the Court, the parties supplemented the record with further submissions after argument. On November 13, 1995, the Government submitted its reply memorandum in support of its motion to dismiss the First Amended Complaint and in opposition to Plaintiffs' motions. That reply memorandum addressed its arguments regarding the motion to dismiss and for summary judgment to the substance of the First Amended Complaint. On November 22, 1995, Plaintiffs submitted their reply memorandum "for summary judgment and in opposition to the motion to dismiss the complaint". This memorandum addressed itself largely to the substance of the Proposed Fourth Amended Complaint, in addition to the substance of the First Amended Complaint.

 Plaintiffs' Rule 3(g) statement was submitted on December 18, 1995, and filing was granted nunc pro tunc. Further letter submissions were accepted from the parties through January 30, 1996.


 Plaintiffs are nationals of the People's Republic of China ("China" or the "PRC") residing in the United States. All entered the United States without inspection on or before April 11, 1990.

 Janet Reno is the Attorney General and head of the Department of Justice of the United States.

 Facts and Relevant Legislation

 The facts set forth here do not constitute findings of fact by the Court. They are drawn from the allegations made by Plaintiffs in the First Amended Complaint.

 I. The Statutory Framework of Immigration Status Adjustment

 Section 245 of the I.N.A., 8 U.S.C. § 1255, allows an alien to apply for status as a lawful permanent resident in the United States rather than requiring him to return to his own country to apply for such status. This is known as "adjustment of immigration status" or "status adjustment". Section 245 provides in pertinent part:

The status of an alien who was inspected and admitted or 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 filed.

 INA § 245, 8 U.S.C. § 1255(a). Because of the special benefit it confers upon an alien who would otherwise be required to depart from the United States to apply for an immigrant visa and then return, Section 245 adjustment is considered to be "extraordinary relief." Howell v. I.N.S., 72 F.3d 288 (2d Cir. 1995) (quoting Jain v. I.N.S., 612 F.2d 683, 687 (2d Cir. 1979), cert. denied, 446 U.S. 937, 100 S. Ct. 2155, 64 L. Ed. 2d 789 (1980)); see also Randall v. Meese, 272 U.S. App. D.C. 63, 854 F.2d 472, 474 (D.C. Cir. 1988) (Ruth Bader Ginsburg, J.) (quoting Jain, 612 F.2d at 687), cert. denied, 491 U.S. 904 (1989); Rahman v. McElroy, 884 F. Supp. 782, 785 (S.D.N.Y. 1995).

 Section 245(a) requires explicitly that an alien must have been inspected, admitted, or paroled into the United States at the alien's last entry in order to receive status adjustment. "Parole" is, in essence, advance authorization for entry, which may be applied for by an alien before leaving the United States in anticipation of a return voyage to this country. By virtue of Section 245(a), those who enter this country illegally are not generally eligible for status adjustment.

 II. The Tiananmen Square Massacre and Executive Order 12711

 In the spring of 1989, over one million peaceful protestors gathered in Beijing's Tiananmen Square calling for democracy in China and protesting rampant corruption. On June 4, 1989, harsh military repression crushed the democracy movement. The attention of the United States and its President and Congress was focussed on the plight of Chinese nationals in the United States who were, or could eventually become, deportable. Among them were students; non-students in temporary, lawful status; and those who had come to the United States without lawful status. Some Chinese nationals had come to the United States fearing persecution based on China's coercive family-planning policy.

 The President of the United States is expressly authorized to increase refugee admissions, INA § 207, 8 U.S.C. § 1157, or to suspend the "entry of all aliens or any class of aliens . . . ." INA § 212(f), 8 U.S.C. § 1182(f). In response to a foreign crisis, the President can authorize the entry of particular groups or extend temporary protection to members of such groups who may already be in the United States, even in the absence of eligibility according to family-based immigration categories.

 On April 11, 1990, President Bush issued Executive Order 12711 ("E.O. 12711" or the "Executive Order"), entitled "Policy Implementation With Respect to Nationals of the People's Republic of China." Executive Order 12711, 55 Fed. Reg. 13897-88 (1990), reprinted in 1992 U.S.C.A.A.N. 1356. The Executive Order provided expansive protection for Chinese nationals. All Chinese nationals in the United States at the time -- whether of lawful or unlawful status -- were included in the Executive Order, in its Section 1. See 1992 U.S.C.A.A.N. at 1356-57. For Chinese nationals who had entered the United States without authorization, the effect of the Executive Order was to stay deportation proceedings against them until January 1, 1994. They thus were placed in a position known as Deferred Enforcement of Departure ("DED"). Plaintiffs were among those who applied for and benefitted from receiving DED under the Executive Order.

 III. The Chinese Student Protection Act

 The Chinese Student Protection Act was passed in September 1992, and signed into law the following month. See 1992 U.S.C.A.A.N. 1355-61. The CSPA amended INA Section 245 -- the statute governing status adjustment for aliens in general -- by providing an avenue for adjustment to at least some of those persons whose enforced departure from the United States had been deferred as a result of Executive Order 12711. See 55 Fed. Reg. 13,897 (Apr. 11, 1990). The CSPA took effect on July 1, 1993, and provided for an application period of one year for the filing of adjustment applications. CSPA § 2(e); 106 Stat. 1971.

 Section 2(a) of the CSPA conferred significant advantages upon qualified PRC nationals in the United States seeking adjustment to LPR status. For example, Section 2(a) exempted qualifying Chinese nationals from the requirements of Section 245(c) of the I.N.A., which generally makes adjustment unavailable to aliens whose legal status has lapsed at the time of application. CSPA § 2(a)(5). In addition, Section 2(a) permitted the Attorney General to bypass national quotas, id. at § 2(a)(4), and the requirement that an alien have an immigrant visa number, id. at § 2(a)(3).

 Section 2(a) accorded these benefits to aliens described in CSPA § 2(b). Section 2(b) required that the applicant 1) be a Chinese national described in Executive Order 12711 (that is, have been present in the United States at some time between June 5, 1989, and April 11, 1990, the date of the Order); 2) have resided continuously in the United States since April 11, 1990; and 3) not have been physically present in China for more than ninety days between April 11, 1990, and October 9, 1992, the date of enactment of the CSPA.

 At the time of implementation of the CSPA, the I.N.S. issued "interim guidelines" for its application, including 8 C.F.R. § 245.9. Regulation 245.9 interpreted the CSPA not to waive the requirement of inspection and admission or parole -- the requirement generally required of any alien seeking status adjustment pursuant to Section 245(a) for CSPA applicants.

 On January 1, 1994, protection under the Executive Order expired, and those Chinese nationals who had otherwise been subject to deportation lost the benefits they had gained while privileged as DED. On June 30, 1994, the period to apply for status adjustment under the CSPA expired. At that time, no further applications for status adjustment were possible.

 IV. Advance Parole and Its Effect

 When the I.N.S. announced Regulation 245.9 as part of its interim guidelines -- interpreting the CSPA to allow status adjustment under the CSPA only to those who had been inspected or paroled pursuant to Section 245(a) -- many Chinese nationals who had illegally entered the United States and had DED status pursuant to the Executive Order applied for advance parole. In so doing, these Section 1 nationals could avail themselves of status adjustment under the CSPA by leaving the country without eligibility for status adjustment and returning as eligible applicants by virtue of their advance parole.

 For the first month-and-a-half of the application period for status adjustment under the CSPA, beginning July 1, 1993, the I.N.S. -- pursuant to a directive to its field offices known as Cable 1 -- continued to grant liberally advance parole to Section 1 nationals, even those without legal status. On August 16, 1993, approximately a month-and-a-half after the CSPA and the interim guidelines had taken effect, the I.N.S. issued a directive to its field offices known as Cable 5, imposing far more stringent requirements on eligibility for advance parole for DED Chinese nationals. As a result, those Section 1 nationals who had applied for advance parole during the month-and-a-half-long period during which advance parole had been relatively easy to obtain became eligible for status adjustment under the CSPA, while those who had delayed in applying for advance parole until the Government restricted its availability were, in effect without an avenue to become eligible for status adjustment.

 V. Section 245(i)

 On August 26, 1994, what became Section 245(i) of the I.N.A. was enacted. See 8 U.S.C. § 1255(i). Section 245(i) permits aliens who entered the United States without inspection ("E.W.I.'s") to adjust their statuses to those of lawful permanent resident if they are "eligible for immigrant classification and have an immigrant visa number immediately available." Id. The statute provides for effective dates from October 1, 1994, through October 1, 1997.

 The implementing regulation, 8 C.F.R. § 245.10, provides that the provisions of Section 245(i) shall not be retroactive. Thus, Section 245(i) is not applied to applications for status adjustment filed before October 1, 1994, nor to motions to reopen or reconsider any applications filed before that date. Since the last date to apply for status adjustment under the CSPA was June 30, 1994, Regulation 245.10 bars resort to Section 245(i) for CSPA applicants who entered without inspection.

 VI. Plaintiffs' Applications

 Each of the Plaintiffs applied for adjustment of status in the manner prescribed by the CSPA at some time on or before June 30, 1994. All but one were denied adjustment on the ground that they had not been inspected and admitted or paroled -- that is, that they had not legally entered the United States at the time of their most recent entries. *fn1"

 Kai Wu Chan subsequently applied for and was granted advance parole, so that he could visit his critically ill mother in China. He entered the PRC on August 28, 1994, and reentered the United States on or about October 19, 1994. Fu Xin Li and Ren Ping Zheng applied for but were denied advance parole. The First Amended Complaint does not allege that Liang Wen Pan ever applied for advance parole.

 Kai Wu Chan filed a motion to reopen and reconsider his application for status adjustment on October 22, 1994, basing his application on his legal entry on October 19, 1994. That motion was denied on February 13, 1995, on the grounds that at the time of the application, he was ineligible for adjustment. On November 28, 1994, Liang Wen Pan filed a motion to reopen. The application was denied on the ground that he had not been admitted, inspected, or paroled.

 Issues Presented in the First Amended Complaint

 In the First Amended Complaint, Plaintiffs seek two declaratory judgments: first, that the I.N.S. unlawfully abused its discretion by denying their applications for status adjustment and their motions to reconsider the initial denial; *fn2" second, that Regulation 245.9 and Cable 5 are unlawful. In addition, Plaintiffs seek a negative injunction enjoining the I.N.S. from applying Regulation 245.9 and a mandatory injunction ordering that the grant of Plaintiffs' status adjustment applications.

 Plaintiffs advance two arguments to support their assertion that the Government improperly denied them status adjustment. They contend that Section 245 (a) -- the requirement that only those who entered the United States with inspection and admission or advance parole are eligible for status adjustment -- was not meant to apply to Chinese nationals otherwise eligible for adjustment under the CSPA, because the CSPA was meant to accord the same privileges and cover the same people as E.O. 12711. In the alternative, Plaintiffs argue that Cable 5 -- the directive that constricted the availability of advance parole to Chinese nationals and thus made ...

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