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CHAN v. RENO

January 13, 1998

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.

 The plaintiffs, nationals of the People's Republic of China who entered the United States without inspection or parole (the "Plaintiffs"), have moved pursuant to Rules 15(a) and 56 of the Federal Rules of Civil Procedure, for leave to amend their Complaint and for summary judgment. Defendant, the Attorney General of the United States (the "Government"), cross-moves for summary judgment. The Plaintiffs allege that (1) the Immigration and Naturalization Service (the "INS") regulation requiring applicants under the Chinese Student Protection Act of 1992 (the "CSPA") to have been inspected and admitted or paroled into the United States misinterprets the statute; (2) the requirement, if correct, violates the Fifth Amendment guarantee of equal protection; and (3) the INS interpretation of new section 245(i) of the Immigration and Nationality Act of 1952, as amended (the "INA"), violates the Fifth Amendment guarantees of equal protection and due process. For the reasons set forth below, Plaintiffs' Amended Complaint is deemed filed, their motion for summary judgment is denied, and the Government's cross-motion for summary judgment is granted.

 The Parties

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

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

 Prior Proceedings

 The background of this case is set forth in the prior opinions of the Court, familiarity with which is assumed. See Chan v. Reno, 1997 U.S. Dist. LEXIS 3016, No. 95 Civ. 2586, 1997 WL 122783 (S.D.N.Y. 1997); Chan v. Reno, 916 F. Supp. 1289 (S.D.N.Y.), reconsideration denied, 932 F. Supp. 535 (S.D.N.Y. 1996).

 Plaintiffs filed the instant motion for summary judgment on May 13, 1997. The Government filed a cross-motion for summary judgment on July 21, 1997. Additional submissions were made and both motions were deemed fully submitted on September 2, 1997.

 Facts

 I. Executive Order 12,711

 As of August 1992, approximately 80,000 PRC nationals in the United States applied for and received benefits under the Executive Order. See H.R. Rep. No. 102-826 (1992), pt. I. Of that number, approximately 70,000 had received work authorizations and 8,000 had become permanent resident aliens. Id.

 II. INS Policy Regarding Advanced Parole

 On May 7, 1990, shortly after the Executive Order was issued, the INS promulgated a directive to its field offices interpreting several aspects of the Executive Order, and specifically addressing requests for advance parole ("Cable 1"). Cable 1 provided that "PRC nationals who need to travel outside of the United States may apply for advance parole. Upon approval of the request, the Service will . . . permit the PRC national to reenter in the same status he or she had upon departure." Cable 1, paragraph 8 (emphasis in original).

 Cable 1 remained in force until August 16, 1993, when the INS issued a new directive which imposed more stringent requirements on eligibility for advanced parole ("Cable 5"). Cable 5 was promulgated a few weeks after the CSPA application period began on July 1, 1993.

 III. The Chinese Student Protection Act of 1992

 The CSPA, signed into law in October, 1992 (over one year prior to the expiration of the protection offered by the Executive Order) granted further immigration relief, and provided that certain PRC nationals could apply for lawful permanent resident status. The CSPA governed applications "for adjustment of status under section 245" of the INA by PRC nationals who (1) were covered by the Executive Order and (2) following the Order, (a) resided continuously in the United States but for "brief, casual, and innocent absences" and (b) were not physically present in the PRC for longer than 90 days. *fn2" See CSPA § 2(b).

 The CSPA provided that the immigration law benefits would not accrue if the President certified to Congress, before the first date of the application period, that the covered aliens could safely return to the PRC. See CSPA at § 2(c)(1). No finding or certification was made that any alien could safely return to the PRC, and accordingly the CSPA application period went into effect.

 On July 1, 1993, the date the application period began, the INS promulgated a regulation interpreting the CSPA. See 8 C.F.R. § 245.9. This regulation required an applicant to establish "eligibility for adjustment of status under all provisions of section 245 of the [INA]." 8 C.F.R. § 245.9(a)(6). Therefore, according to the INS, only applicants who had been "inspected and admitted or paroled into the United States" would be eligible for CSPA benefits. See 8 U.S.C. § 1255(a). An alien covered by the Executive Order who initially entered illegally -- without inspection -- would need to leave and return with inspection or advance parole to be eligible for CSPA benefits.

 IV. New INA Section 245(i) and the Regulation


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