The opinion of the court was delivered by: McKENNA, D.J.
Plaintiff Zhu, Xin Ju (96 Civ. 8229) moves for summary judgment. The government opposes the motion and cross-moves, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) and 41(b), for dismissal of all of the above actions. Plaintiff Zheng, Xiang Guan, opposing the motion, also moves for a severance of his case (98 Civ. 4257) from the other cases.
The government has shown that the actions in which they are plaintiffs are moot as to a number of individual plaintiffs. See: Gov't Mem. at 1 n.1 (Lin, Xian Qin; and Chen, Ben Sheng); id. at 9 (Zhang, Yu Liang; Chen, Hai; Dai, Guang Tai; Shao, Xiang Chao; Zhang, Min Lu; Guo, Hou Li; Chen, Chong Li; Chen, Ji Hao; Chi, San Di; Lin, Zhen; and Zheng, Zheng Mao); id. At 9-10 (Huang, Qing Shen; Zhang, Zi Qiao; Yu, Chen Wei; Zhu, Xin Ju; Lee, Yung; Cheng, Hsiu Shun; Lin, Jian You; Yang, Guo Sheng; Xiao, Yong; Yang, Ji Guan; and Zhang, Yu Yuan); see further, Gov't Mem. at 17-21. As to these plaintiffs, the action is dismissed as moot, pursuant to Fed. R. Civ. P. 12(b)(1).
In considering the government's motion for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), the Court accepts all of the factual allegations of the complaints as true, and draws all reasonable inferences in plaintiffs' favor.
Plaintiffs in the first four of the above actions are citizens of China that entered the United States without inspection and admission or parole. They claim that between June 1993 and June 1994, they submitted individual applications to the former INS seeking discretionary adjustments of their respective immigration statuses to that of lawful permanent residents of the United States ("adjustment applications" or "'green card' applications"), pursuant to § 245(a) of the Immigration and Nationality Act of 1952, as amended ("INA"). Plaintiffs claim they filed their adjustment applications pursuant to the Chinese Student Protection Act of 1992 ("CSPA"), which extended significant advantages to qualified Chinese nationals seeking lawful immigration status. Plaintiffs claim the INS denied their respective applications because they lacked a statutory prerequisite to adjustment, i.e., lawful admission to the country. Plaintiffs claim that notwithstanding their entries without inspection, the INS should have considered them eligible to seek adjustment under former INA § 245(i), which was enacted after the period for CSPA applications had closed, and which, until its initial expiration in 1998, permitted aliens to cure their unlawful entries by paying a "superfee." In these consolidated actions, plaintiffs seek, inter alia, Orders directing the Government to consider them eligible for adjustment under the CSPA and INA § 245(i), and to reconsider their adjustment applications. (Gov't Mem. at 4-5.)
In Ri Kai Lin v. Bureau of Citizenship and Immigration Services, 514 F.3d 251 (2d Cir. 2008), the Second Circuit, on a petition for review of a decision of the Board of Immigration Appeals, held that an individual in the same situation as that of the plaintiffs described above by the government was not entitled to an adjustment of status. 514 F.3d at 254-55. The same result must be reached here.
The complaints in the first four of the above actions are dismissed as to all plaintiffs other than those as to whom, in Section 2 of this Memorandum and Order, the Court dismissed the complaint as moot; and, should it be found that an action is not moot as to any such plaintiff, then the complaint is dismissed as to that plaintiff under Ri Kai Lin. The motion of Zhu (96 Civ. 8229) is denied as moot because the action is moot as to him, or if not, the complaint in which he is joined as a plaintiff is dismissed under Ri Kai Lin.
The situation in the fifth of the above cases (98 Civ. 4257) is somewhat different: plaintiff Zheng's complaint alleges that "[h]e did make one trip to the People's Republic of China from June 15, 1994 to June 25, 1994. He was granted advance parole for his trip by the U.S. Department of Justice, Immigration and Naturalization Service on June 2, 1994." (Complaint, ¶ 6(e) (citation omitted).) A copy of the Authorization for Parole is annexed as Exhibit D to Plaintiff Zheng's Opposition.
The government does not, in its Rules 12 and 41 motion, dispute Zheng's allegations, but it does argue that the fact that Zheng "was granted a humanitarian 'advance parole' to re-enter the United States after traveling to China in June 1994 . . . does not render his claims any more cognizable because that grant of advance parole did not 'cure' his initial entry without inspection." (Gov't Mem. at 15-16 n.13.) For reasons set forth below, the Court disagrees.
The Court first concludes, as a preliminary matter, that the factual difference in Zheng's case in comparison with those of the plaintiffs in the first four of the above cases is a sufficient basis on which to grant Zheng's motion for a severance of his case from the others. The government does not assert that his case is moot, nor ...