If Plaintiffs were to be correct, then all E.W.I. PRC nationals who applied for advance parole could have traveled and reentered the United States, regardless of any other factor such as when they entered the United States or their destination. Accordingly, anyone covered by the Executive Order could have applied for CSPA benefits, had they chosen to do so. However, Plaintiffs have failed to show that the INS granted parole automatically to any E.W.I. PRC national who applied, and no further proof has been offered to show which, if any, of the Plaintiffs or others are similarly situated as those E.W.I. PRC nationals who did obtain advance parole. Since the existence of two differently treated classes who are otherwise similarly situated is a material element of Plaintiffs' equal protection claim, summary judgment must be granted for the Government.
VI. INS' Denial of INA Section 245(i) benefits in Reopened Cases Does Not Deny Equal Protection of the Laws
Section 245(i) of the INA, 8 U.S.C. 1255(i), provides that an alien may receive discretionary status adjustment without satisfying the requirements of inspection and admission or parole if the alien pays a fivefold "superfee." Finding their CSPA applications denied for failure to comply with the requirements that are waived by section 245(i), Plaintiffs attempt here to concatenate the benefits of the CSPA with the benefits of section 245(i) by reopening their CSPA applications. However, this attempt is frustrated by the INS's interpretation of INA section 245(i) to apply only to applications filed on or after October 1, 1994, and therefore not to apply to reopened CSPA applications. See 8 C.F.R. § 245.10.
Plaintiffs seek to attack the INS interpretation on equal protection and due process grounds. The Plaintiffs' equal protection claim contends that this interpretation prevents only CSPA applicants from taking advantage of the waiver of the inspection or parole requirements, thereby disadvantaging CSPA applicants relative to other aliens applying for such adjustment.
The premise, however, that the interpretation excludes CSPA applicants from section 245(i) benefits, however, is based on a misreading of the regulation. Under the regulation, a previous CSPA applicant denied status adjustment can file a new application under section 245(i) and be considered for status adjustment notwithstanding unlawful entry. See 8 C.F.R. § 245.10 ("An applicant whose pre-October 1, 1994, application for adjustment of status has been denied may file a new application for adjustment of status pursuant to section 245(i)."). Plaintiffs do not dispute this, and rather complain that the Government's interpretation denies the Plaintiffs the benefits of both statutes in the same application.
Given the availability of the statute to Plaintiffs, albeit without the CSPA benefits, Plaintiffs' contention that the INS interpretation cannot be valid since it violates equal protection is without merit. Requiring CSPA applicants, along with all other prior applicants, to file a new application rather than reopen their previous application is rationally related to the statute's purposes. As the Government contends, the INS interpretation grants status adjustment relief to aliens who otherwise would not qualify, but in a way that enforces "repose with respect to the possibly thousands of adjustment applications filed before section 245(i)'s effective date." Furthermore, since the CSPA applicants may submit a new application, the interpretation generates additional revenues, since the previously-rejected CSPA applicants would pay the "superfee." Accordingly, these two statutory purposes advanced by the Government, and not refuted by the Plaintiffs, are rationally related to the INS regulation prohibiting the concatenation of CSPA and INA section 245(i) benefits.
VII. INS' Denial of INA Section 245(i) benefits in Reopened Cases Does Not Violate Due Process
Plaintiffs further contend that denial of section 245(i) benefits to reopened applications violates (1) procedural due process; and (2) a due process principle that a case should be decided on the basis of present law, if a change in law occurs during the pendency of the case.
The Fifth Amendment prohibits the Government from depriving an individual of "life, liberty, or property, without due process of law." U.S. Const. amend V. To invoke the procedural protections of the Constitution, a litigant must identify the interest being deprived. Ingraham v. Wright, 430 U.S. 651, 672, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1976). Here, Plaintiffs fail to state any deprivation.
However, whether the claimed interest is characterized as a property or liberty interest, the argument fails of its own circularity. Since as already section 245(i) does not apply to reopened CSPA applications for status adjustment, there can be no deprivation of a property or liberty interest thereby created. See Azizi, 908 F.2d at 1134 (holding no deprivation of property interest since plaintiff was not in class benefited by statute). Because Plaintiffs fail to identify a protected interest, their procedural due process claim is dismissed.
Plaintiffs' second proposition must also fail. The question is not, as the Plaintiffs contend, whether new law should be applied to pending cases. Here, the new law, by its own terms, applies only to status adjustment applications filed during the three-year period. This excludes applicability to applications filed before the three-year window and merely reopened within the window.
The cases cited by the Plaintiffs are off-point. Ziffrin, Inc. v. United States, 318 U.S. 73, 78, 87 L. Ed. 621, 63 S. Ct. 465 (1942) considers the question of whether a new statute should apply to pending applications. See also Bradley v. Richmond School Board, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) (("[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary."). Likewise, Plaintiffs' reliance on De Gurules v. I.N.S., 833 F.2d 861 (9th Cir. 1987) is not relevant to their claim. In that case the issue was not whether the new statute would be applicable to the pending case, but rather whether the new statute could be applied retroactively without resulting in a manifest injustice. Id. at 863.
For the reasons set forth above, the Plaintiffs' Amended Complaint is deemed filed, their motion for summary judgment is denied, and the Government's cross-motion for summary judgment is granted.
Settle judgment on notice.
It is so ordered.
New York, N. Y.
January 13, 1998
ROBERT W. SWEET