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KAI WU CHAN v. RENO

June 25, 1996

KAI WU CHAN, YONG SUN LI, FU XIN LI, REN PING ZHENG, and LIANG WEN PAN, Plaintiffs, against JANET RENO, UNITED STATES ATTORNEY GENERAL, Defendant.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Plaintiffs Kai Wu Chan, Yong Sun Li, Fu Xin Li, Ren Ping Zheng, and Liang Wen Pan (collectively, "Plaintiffs") have moved for reconsideration of this Court's March 4, 1996, oral denial (the "Oral Order") of their application to have their Order to Show Cause why the INS should not be enjoined from conducting deportation proceedings against them treated as a motion for reconsideration of this Court's Opinion of February 13, 1996, Chan v. Reno, 916 F. Supp. 1289 (S.D.N.Y. 1996) (the "Opinion"). The motion will be deemed to have been 1) a motion to reconsider made pursuant to Federal Rule of Civil Procedure 59(e) and 2) a motion made pursuant to Federal Rule of Civil Procedure 60(b) for relief from the judgment of February 20, 1996 (the "Judgment"), dismissing the First Amended Complaint. For the reasons set forth below, both motions will be denied. Leave will be granted to renew the Rule 60 motion in the event of withdrawal of the pending appeal, in the event that Plaintiffs request permission from the Court of Appeals for remand of this issue, or in the event that the Court of Appeals remands the issue sua sponte before reviewing it on its merits.

 The Opinion

 The factual background of this case is set forth in the Opinion, familiarity with which is assumed. The First Amended Complaint sought to adjust the status of Plaintiffs -- Chinese who had entered the United States illegally -- to that of lawful permanent resident pursuant to the Chinese Student Protection Act of October 9, 1992, Pub.L. No. 102-404, 106 Stat. 1969-1971 (the "CSPA"); see 8 U.S.C. § 1255. Plaintiffs based their claims for relief on two arguments: that the I.N.S. had incorrectly interpreted the CSPA to require legal entry -- essentially a statutory construction argument -- and that an I.N.S. directive known as Cable 5 had violated an Executive Order. See Chan v. Reno, 916 F. Supp. at 1295-6.

 The Opinion granted the motion of Defendant Janet Reno, United States Attorney General ("the Government"), to dismiss plaintiffs' First Amended Complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, because plaintiffs had failed to exhaust their administrative remedies. Id. at 1297-1300. Having dismissed the First Amended Complaint, the Opinion thus denied as moot Plaintiffs' motion for summary judgment on that complaint. Id. at 1300.

 In dismissing the First Amended Complaint, the Opinion relied heavily on Howell v. I.N.S., 72 F.3d 288 (2d Cir. Dec. 20 1995), which had been filed by the Court of Appeals for the Second Circuit after briefing and oral argument by the parties to this action. Howell held, inter alia, that a party need not exhaust its administrative remedies prior to seeking relief in a federal district court 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.

 Chan, 916 F. Supp. at 1299 (citing Howell, 72 F.3d at 291-92).

 The Opinion found that Plaintiffs would, upon commencement of deportation proceedings, have the opportunity for review by an immigration judge and the Board of Immigration Appeals (B.I.A.) of their objections to the I.N.S. interpretation of the CSPA. The Opinion thus determined that none of the four exceptions set out in Howell applied; that, therefore, Plaintiffs had not exhausted their administrative remedies; and that, as a result, this Court lacked jurisdiction. The First Amended Complaint was dismissed on this basis, and Plaintiffs' motion for summary judgment on that complaint was, therefore, denied as moot.

 The Opinion also denied Plaintiffs' motion to amend the First Amended Complaint with the "Proposed Fourth Amended Complaint". Id. at 1308. This latter complaint sought relief along the lines sought in the First Amended Complaint, but it advanced new grounds for that relief. Most notably, it added a claim that the rights of certain plaintiffs and proposed plaintiffs to equal protection under the law had been violated, because the I.N.S. had denied them adjustment to the status of lawful permanent resident, while granting such status to similarly situated Chinese nationals who had travelled from and reentered the United States during a particular time period. The Proposed Fourth Amended Complaint also claimed that Cable 5 itself had violated equal protection rights by distinguishing without a rational basis between those who had applied for advance parole before its promulgation and those similarly situated who had applied for advance parole after its promulgation. The Opinion, without holding on the merits of those claims, deemed them to present "substantial constitutional questions." Id. at 1304-05.

 However, the Opinion determined that despite the assertion of these claims, the Proposed Fourth Amended Complaint, like the First Amended Complaint, failed to present an exception to the administrative exhaustion rule. Id. at 1303-1308. That conclusion was based in part on a holding that, like the First Amended Complaint, none of the exceptions to the doctrine, as set out in Howell, was met, noting, inter alia, that "available remedies do provide genuine opportunities for adequate relief . . . and administrative appeal would not be futile." Id. at 1303. Thus, held the Opinion, "the Proposed Fourth Amended Complaint would, therefore, be subject to a successful motion to dismiss on jurisdictional grounds, and amendment would be futile." Id. at 1308. For that reason, Plaintiffs' motion to amend was denied. Id.

 Prior proceedings

 On February 13, 1996, on the same day as the Opinion was signed, Plaintiffs applied to the Court for an Order to Show Cause "enjoining commencement or continuation of deportation proceedings of any plaintiffs during the pendency of this action or any appeals." The Court Ordered the Government to show cause on March 4, 1996. On February 20, 1996, ...


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