Shia Association of Bay Area, Inc., et al v. UNITED STATES OF AMERICA et al

Filing 30

ORDER by Judge Samuel Conti granting 24 Plaintiffs' Motion for Summary Judgment (sclc1, COURT STAFF) (Filed on 2/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SHIA ASSOCIATION OF BAY AREA,
et al.,

United States District Court

For the Northern District of California

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Plaintiffs,

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v.
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UNITED STATES OF AMERICA, et
al.,

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Defendants.

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) Case No. 11-1369 SC
)
) ORDER GRANTING PLAINTIFFS'
) MOTION FOR SUMMARY JUDGMENT
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I.

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INTRODUCTION
Plaintiffs in this case are a Muslim mosque, Shia Association

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of the Bay Area ("SABA"); its Imam, Dr. Nabi Raza Mir ("Mir");

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Mir's wife, Syeda Gulshan Zahera ("Zahera"); and the couple's five

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sons, ages three, five, seven, sixteen, and seventeen.

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the United States from India over ten years ago, at the invitation

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of SABA, and his wife and sons soon followed.1

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served as SABA sole minister.

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trying to convert Mir and his family's temporary visa status to

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permanent residence.

Mir came to

Since 2002, Mir has

Since 2005, Plaintiffs have been

Mir and his family entered the United States

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1

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Mir's three youngest sons were born in the United States and are
now United States citizens.

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legally and there is no indication that they are a threat to

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national security, have broken any laws, or have been anything but

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diligent in pursuing their various immigration petitions.

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Plaintiffs' petitions have been denied and delayed at every turn by

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the Department of Homeland Security ("DHS").

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Plaintiffs' application for a special immigrant religious worker

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visa based on regulations which had been changed while Plaintiffs'

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application was pending on appeal to the Administrative Appeals

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Office ("AAO").

However,

In 2008, DHS denied

United States District Court

For the Northern District of California

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In December 2010, Mir, Zahera, and their three youngest sons

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left the United States -- in possession of valid travel documents

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-- to visit Mir's ill mother in India.

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Defendants effectively trapped Mir and Zahera outside of the United

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States by revoking their travel documents.

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returned to the United States, pursuant to a stipulation between

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the parties, they were placed into removal (i.e., deportation)

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proceedings.

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constitutional and statutory violations.

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Several days later,

When Mir and Zahera

Plaintiffs filed this action, alleging various

Now before the Court are cross-motions for summary judgment

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filed by Plaintiffs and Defendants United States of America; Janet

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Napolitano, Secretary of Homeland Security; Alejandro Mayorkas,

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Director of the United States Citizenship and Immigration Service

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("USCIS"); Rosemary L. Melville, Director of USCIS California

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Service Center; Eric Holder, Attorney General; Hillary Clinton,

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Secretary of State; Perry Rhew, Director of USCIS Administrative

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Appeals; and David Aguilar, Deputy Commissioner, United States

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Customs and Border Protection.

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("Defs.' MSJ").

ECF Nos. 24 ("Pls.' MSJ"); 25

These motions are fully briefed.

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ECF Nos. 26

1

("Pls.' Reply"); 29 ("Defs.' Reply").

Pursuant to Civil Local Rule

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7-1(b), the Court finds the motions suitable for determination

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without oral argument.

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summary judgment in favor of Plaintiffs.

For the following reasons, the Court GRANTS

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6

II.

BACKGROUND

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A.

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In light of the complexity of United States immigration law,

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Legal Framework

the Court first reviews the statutes and regulations central to the

United States District Court

For the Northern District of California

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resolution of this case.

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("INA"), up to 5000 special immigrant visas may be granted to

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religious workers each year.

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1101(a)(27)(C).

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United States and many individuals who are already present in this

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country entered on a non-immigrant visa, also known as an R-1 visa.

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See Id. § 1101(a)(15)(R).

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in the United States for up to five years.

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1101(a)(15)(R)(ii).

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unless they seek to "adjust status" prior to their R-1 visa's

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expiration.

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her status will be unlawful.

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the alien accrues a period of unlawful presence of more than 180

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days, the alien is statutorily ineligible for adjustment of status.

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Id. § 1255(k).

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Under the Immigration and Nationality Act

8 U.S.C. § 1153(b)(4); 8 U.S.C. §

Visa applicants may be living overseas or in the

Individuals who hold R-1 visas may stay
Id. §

R-1 visa holders must depart after five years

If the alien does none of these things, then his or
8 U.S.C. § 1255(c), (k).

Further, if

The first step in applying for a special immigrant religious

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worker visa is the submission of a Form I-360 petition by a

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sponsoring religious organization.

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least the two-year period immediately preceding the time of

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The INA provides that, for at

1

application, a special immigrant religious worker must have been a

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member of a "bona-fide" religious denomination and have been

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carrying on the vocation of a minister of that religious

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denomination.

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Id. § 1101(a)(27)(C).

DHS regulations prescribe a number of additional requirements
See 8 C.F.R. 204.5(m).

In November 2008, DHS

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for eligibility.

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promulgated a final rule amending those regulations so that it

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could better detect and deter fraud and other abuses in the

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religious work program.

73 Fed. Reg. 72276 (Nov. 26, 2008).

Under

United States District Court

For the Northern District of California

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the old regulations, persons could qualify for special immigrant

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religious worker classification if, among other things, they had

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been working in a qualified religious vocation "continuously

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(either abroad or in the United States) for at least the two-year

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period immediately preceding the filing of the [Form I-360]

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petition."

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a petitioner's two years of qualifying work experience was

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performed in the United States, then that work must have been

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performed "in lawful immigration status."

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(11) (2012).

8 C.F.R. § 204.5(m) (2007).

Under the amended rule, if

8 C.F.R. § 204.5(m)(4),

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In addition to filing a Form I-360 petition, an alien seeking

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to adjust status to that of a lawful permanent resident must apply

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for adjustment of status through Form I-485.

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alien may adjust status if (1) the alien makes an application; (2)

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the alien is eligible to receive a visa; and (3) a visa is

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immediately available.

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245.2(a)(2)(i)(B), special immigrant religious workers may only

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file a Form I-485 application with an approved Form I-360

8 U.S.C. § 1255(a).

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4

Under the INA, an

Pursuant to 8 C.F.R. §

1

petition.2

2

petition for a visa and a Form I-485 application for adjustment of

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status at the same time.

Other classes of alien workers may file a Form I-360

4

B.

Plaintiffs' Arrival in the United States

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Upon SABA's invitation, Mir entered the United States with an
Pls.' Ex. A.3

Mir's R-1

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R-1 nonimmigrant visa in February 2002.

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visa was set to expire in early 2007.

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his wife and the couple's two sons joined Mir in the United States,

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entering on R-2 visas.

Id.

Once Mir settled in at SABA,

Zahera gave birth to three more sons

United States District Court

For the Northern District of California

10

in 2003, 2005, and 2007; each is a United States citizen.

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Pls.'

Ex. W.

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C.

Plaintiffs' Form I-360 Petitions

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On April 11, 2005, SABA filed a Form I-360 petition for Mir,

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the first step toward his religious worker immigrant visa, so that

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Mir could continue to serve as SABA's minister on a permanent

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basis.

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appealed to the AAO, and then vacated and remanded back to USCIS.

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Pls.' Ex. C.

This first petition was denied by USCIS,

In 2009, a class of alien beneficiaries of special religious
worker visa petitions challenged the validity of 8 C.F.R. §
245.2(a)(2)(i)(B). The Western District of Washington invalidated
the regulation and issued an injunction requiring the government to
accept adjustment of status applications from beneficiaries of
pending special religious worker visa petitions. Ruiz-Diaz v.
United States, No. C07-1881RSL, 2009 U.S. Dist. LEXIS 131744 (W.D.
Wash. June 11, 2009). In August 2010, the Ninth Circuit reversed
the district court's decision and vacated the injunction, holding
that the regulation was a reasonable construction of the INA.
Ruiz-Diaz v. United States, 618 F.3d 1055, 1062 (9th Cir. 2010).
3

Marc Van Der Hout ("Van Der Hout"), attorney for Plaintiffs,
filed a declaration in support of Plaintiffs' motion for summary
judgment. ECF 24-2 ("Van Der Hout Decl."). A number of exhibits
are attached to the Van Der Hout Declaration (hereinafter, "Pls.'
Exs."). Melissa Leibman ("Leibman"), counsel for Defendants, filed
a declaration in support of Defendants' cross-motion for summary
judgment. ECF 25-1 ("Leibman Decl."). A number of documents are
also attached to the Leibman Declaration (hereinafter, "Defs.'
Exs.").

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1

Pls.' Ex. F, G, K.

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I-360 petition based on "unresolved inconsistencies" in the

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petition concerning Mir's compensation and continued employment

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status and whether SABA had made Mir a "qualifying job offer."

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Pls.' Ex. M.

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petition on November 15, 2007 -- over two years after SABA had

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first filed its petition.

The AAO finally affirmed USCIS's denial of the first

Pls.' Ex. O.

In June 2007, while its first Form I-360 petition was pending

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On remand, USCIS again denied SABA's first Form

on appeal, SABA filed a second Form I-360 petition on behalf of

United States District Court

For the Northern District of California

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Mir.

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months of unlawful presence in the United States, as his R-1

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nonimmigrant visa had expired earlier that year.

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2007, USCIS denied SABA's second I-360 petition for the same

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reasons it denied the first.

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Pls.' Ex. H.

By that time, Mir had accrued close to six

Pls.' Ex. P.

On November 26,

SABA appealed.

In November 2008, while SABA's appeal was pending, DHS amended

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the visa eligibility regulations to require that qualifying work

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done in the United States must have been performed in lawful

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immigration status.

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AAO vacated USCIS's denial of SABA's second Form I-360 petition,

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remanding it to USCIS with instructions to issue a request for

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evidence and a new decision in accordance with the new regulations.

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Pls.' Ex. Q.

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second Form I-360 petition for the same reasons it denied the

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petition in 2007.

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affirmed USCIS's decision on January 4, 2011.

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AAO disagreed, in part, with USCIS's findings regarding SABA's job

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offer, but determined that Mir failed to satisfy the new regulatory

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requirements promulgated in November 2008.

73 Fed. Reg. 72276.

On December 16, 2008, the

In November 2010, on remand, USCIS denied SABA's

Defs.' Ex. H.

SABA appealed again, but the AAO

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Defs.' Ex. J.

Id.

The

The AAO found that

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Mir's R-1 nonimmigrant religious worker status had expired on

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January 1, 2007, five months before SABA had filed his second Form

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I-360 petition, and that Mir had continued to work as a minister

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after his R-1 status expired.

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concluded: "[SABA] has acknowledged . . . that [Mir] worked without

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authorization during the two year qualifying period.

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regulations now in effect at 8 C.F.R. §§ 204.5(m)(4) and (11), we

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must find that [Mir]'s admittedly unlawful employment cannot

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qualify him from the classification sought in the present

United States District Court

For the Northern District of California

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petition."

Defs.' Ex. J at 1471.

The AAO

Under the

Id. at 1473.

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D.

Plaintiffs' Applications for Adjustment of Status

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On June 1, 2007, Mir filed Form I-485 applications for

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adjustment of status on behalf of himself, his wife, and two of his

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children.

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days later because 8 C.F.R. § 245.2(a)(2)(i)(B) required that they

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hold approved special immigrant visas before filing for an

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adjustment of status.

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adjustment of status again on August 21, 2009, after the Western

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District of Washington issued a nation-wide injunction in Ruiz-

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Diaz, effectively invalidating 8 C.F.R. 245.2(a)(2)(i)(B).

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Ex. R.

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been vacated by the Ninth Circuit, USCIS issued a notice of

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decision to Mir and his family, informing them that it had denied

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their adjustment of status applications on January 28, 2011.

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Defs.' Ex. P, S, W, X.

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27

E.

Pls.' Ex. I.

Their applications were rejected a few

Pls.' Ex. J.

Mir and Zahera filed for an

Pls.'

On January 31, 2011, after the Ruiz-Diaz injunction had

Plaintiffs' Departure from and Return to the United
States

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On December 25, 2010, with SABA's final appeal of its Form I-

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360 petition still pending before the AAO, Mir, Zahera, and their

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three youngest children left the United States to visit Mir's ill

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mother in India.

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would have no problem returning to the United States because they

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had been granted "advance parole" and a Form I-512L travel

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document, which were not set to expire until March 16, 2011.4

At the time, Mir believed that they

Things did not work out as planned.

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9

Pls.' Ex. W.

Id.

Ten days after Mir and

his family left the United States, the AAO affirmed denial of

United States District Court

For the Northern District of California

10

SABA's second Form I-360 petition.

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on January 25, 2011, he and his family unsuccessfully tried to

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check-in for their flight back to the United States.

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The airline allegedly told Mir that the United States Embassy had

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informed it that he and his family's advance parole had been

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revoked and that they could not board the plane.

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31, 2011, USCIS notified Mir and his family that their applications

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for adjustment had been denied and their advance parole had been

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terminated.

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("Compl.").

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4

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24
25
26
27
28

Mir claims that,

Id.

Pls.' Ex. W.

On January

Pls.' Ex. Y.

On March 22, 2011, Plaintiffs filed this action.

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22

Defs.' Ex. J.

ECF No. 1

A few weeks later, the parties filed a joint

Mir's Form I-512L stated:
The bearer departed the United States and intends to
return to the United States to resume processing of the
adjust of status application.
Presentation of the
original of this document prior to March 16, 2011 allows
Customs and Border Protection (CBP) Inspector at a portof-entry to parole the named bearer . . . into the United
States
based
upon
urgent
humanitarian
reasons
or
significant public benefit. . . .
Parole is not
admission into the United States. . . . Parole into the
United States is not guaranteed.

Pls.' Ex. S.

8

1

stipulation, in which Defendants agreed to facilitate Plaintiffs'

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return to the United States, and on April 15, 2011, the Court

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approved the parties' stipulation.

4

Order").

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his wife all of the rights and process due them under the law,

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including the Immigration and Nationality Act, upon his return to

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the United States."

8
9

ECF Nos. 14, 15 ("Apr. 15, 2011

Under the stipulation, DHS was to "provide Mr. Mir and

Apr. 15, 2011 Order at 2.

Plaintiffs contend that Defendants' actions upon Mir and
Zahera's return to the United States violated the terms of the

United States District Court

For the Northern District of California

10

stipulations.

On April 25, 2011, Customs and Border Protection

11

officers paroled Mir and Zahera into the United States.

12

officers also issued Mir and Zahera Notices to Appear, placing them

13

into removal proceedings pursuant to 8 U.S.C. §

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1182(a)(7)(A)(i)(I).

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Appear, Mir and Zahera were removable because they were "not in

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possession of a valid unexpired immigrant visa, reentry permit,

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border crossing card, or other valid entry document."

Pls.' Ex. at Z.

The

According to the Notice to

Id.

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F.

Plaintiffs' Lawsuit

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Plaintiffs' Complaint was filed on March 22, 2011, before Mir

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and Zahera returned to the United States.

The Complaint asserts

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eleven causes of action:

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-- lack of notice of intent to revoke advance parole; (2) violation

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of regulations -- lack of notice of intent to revoke advance

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parole; (3) violation of regulations and due process -- failure to

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restore Plaintiffs to their prior status and allow them to return

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to the United States; (4) violation of Plaintiffs' due process

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right to renew their application for adjustment of status before a

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neutral immigration judge; (5) violation of equal protection; (6)

(1) violation of procedural due process

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1

writ of mandamus -- seeking an order allowing Plaintiffs to return

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to the United States; (7) violation of the Religious Freedom

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Restoration Act of 1993; (8) violation of the Administrative

4

Procedure Act ("APA"); (9) ultra vires -- asserting Defendants'

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2008 regulations at 8 C.F.R. §§ 204.5(m)(4) and (11) are ultra

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vires to the organic statute; (10) due process -- asserting

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Defendants violated Plaintiffs' due process rights by retroactively

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applying the 2008 regulations to SABA's second Form I-360 petition;

9

(11) estoppel -- alleging, among other things, that Defendants are

United States District Court

For the Northern District of California

10

estopped from denying SABA's second Form I-360 petition based on

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the retroactive application of the 2008 regulations.

12

120.

FAC ¶¶ 79-

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Plaintiffs now move for summary judgment on the grounds that:

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(1) the 2008 amendments to 8 C.F.R. 204.5(m) are invalid and ultra

15

vires to the INA; (2) application of the 2008 amendments to

16

Plaintiffs' Form I-360 petition is impermissibly retroactive; and

17

(3) Defendants violated Plaintiffs' due process rights by revoking

18

Mir and Zahera's advance parole.

19

motion for summary judgment, addressing each of these arguments.

Defendants have filed a cross-

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III. LEGAL STANDARD

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Entry of summary judgment is proper "if the movant shows that

23

there is no genuine dispute as to any material fact and the movant

24

is entitled to judgment as a matter of law."

25

56(a).

26

require a directed verdict for the moving party.

27

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

28

mandates the entry of summary judgment . . . against a party who

Fed. R. Civ. P.

Summary judgment should be granted if the evidence would

10

Anderson v.
Thus, "Rule 56[]

1

fails to make a showing sufficient to establish the existence of an

2

element essential to that party's case, and on which that party

3

will bear the burden of proof at trial."

4

477 U.S. 317, 322 (1986).

5

believed, and all justifiable inferences are to be drawn in his

6

favor."

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of a scintilla of evidence in support of the plaintiff's position

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will be insufficient; there must be evidence on which the jury

9

could reasonably find for the plaintiff."

Celotex Corp. v. Catrett,

"The evidence of the nonmovant is to be

Anderson, 477 U.S. at 255.

However, "[t]he mere existence

Id. at 252.

"When

United States District Court

For the Northern District of California

10

opposing parties tell two different stories, one of which is

11

blatantly contradicted by the record, so that no reasonable jury

12

could believe it, a court should not adopt that version of the

13

facts for purposes of ruling on a motion for summary judgment."

14

Scott v. Harris, 550 U.S. 372, 380 (2007).

15
16

IV.

DISCUSSION

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A.

Validity of Amendments to 8 C.F.R. § 204.5(m)(4), (11)

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Plaintiffs argue that Defendants exceeded their authority

19

under the INA by promulgating the November 2008 amendments to 8

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C.F.R. § 204.5(m)(4), (11) and, as such, the regulations are now

21

ultra vires to the statute.

22

that the amended regulation is entitled to Chevron deference since

23

it constitutes a reasonable interpretation of a statutory gap.

24

Defs.' MSJ at 9.

25

Pls.' MSJ at 18.

Defendants respond

The Court agrees with Plaintiffs.

The INA defines a special immigrant religious worker as

26

someone who, among other qualifications, has been "carrying on such

27

vocation, professional work, or other work for at least" two years

28

before a petition is filed.

8 U.S.C. § 1101(a)(27)(C).

11

The

1

November 2008 regulations provide that, to be eligible for

2

classification as a special immigrant religious worker, an alien

3

must have been working in a qualified religious occupation, "either

4

abroad or in lawful immigration status in the United States, . . .

5

continuously for at least the two-year period preceding the filing

6

of the petition."

7

amendments further provide that "qualifying experience during the

8

two years immediately preceding the petition[,] . . . if acquired

9

in the United States, must have been authorized under United States

United States District Court

For the Northern District of California

10

immigration law."

8 C.F.R. § 204.5(m)(4) (emphasis added).

The

Id. § 204.5(m)(11) (emphasis added).

11

The Court reviews whether 8 C.F.R. § 204.5(m)(4), (11)

12

conflicts with the INA under the two-part test set out in Chevron

13

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

14

837 (1984).

15

ask whether Congress has spoken to question at issue or "has

16

explicitly left a gap for the agency to fill."

17

If Congress has spoken to the issue unambiguously, then the Court

18

must accept that statement as controlling.

19

statute at issue is either silent or ambiguous, the Court must

20

proceed to step two and consider whether the agency's

21

interpretation is a reasonable and permissible construction of the

22

statute.

23

the agency's interpretation is reasonable, the Court must defer to

24

the agency.

25

Under step one of the Chevron analysis, the Court must

Id.

467 U.S. at 843-44.

However, if the

Id.; Ruiz-Diaz v. United States, 618 F.3d at 1060.

Where

Chevron, 467 U.S. at 842-43.

While 8 C.F.R. § 204.5(m)(4), (11) may pass muster under

26

Chevron step one, the Court declines to defer the agency's

27

interpretation because, under Chevron step two, the regulation is

28

inconsistent with the prevailing statutory scheme.

12

Specifically, 8

1

C.F.R. § 204.5(m)(4), (11) cannot be considered reasonable because

2

it is contrary to Congress's explicit mandate in 8 U.S.C. §

3

1255(k).

4

for an adjustment of status, even if the alien has engaged in

5

unauthorized employment, so long as the alien has not engaged in

6

unauthorized employment for more than an aggregate period exceeding

7

180 days.

8

which prohibits even a single day of unauthorized work in the two-

9

year period immediately preceding a special immigrant worker visa

United States District Court

For the Northern District of California

10

Section 1255(k) provides that an alien may be eligible

The statute conflicts with 8 C.F.R. § 204.5(m)(4), (11),

petition.
Defendants argue that there is no tension between 8 U.S.C. §

11
12

1255(k) and 8 C.F.R. § 204.5(m)(4), (11) because the former

13

pertains to eligibility for adjustment of status and the latter

14

applies to eligibility for a special immigrant visa.

15

at 5.

16

requirements are connected.

17

adjustment of status if he or she is also "eligible to receive an

18

immigrant visa and is admissible to the United States for permanent

19

residence[.]"

20

that an alien may work up to 180 days in unauthorized status and

21

still remain eligible for an adjustment of status.

22

However, under the 2008 amendments to 8 C.F.R. § 204.5, that is no

23

longer the case.

24

status, then the alien is ineligible for a special immigrant visa

25

and, consequently, also ineligible for an adjustment of status.

26

Thus, DHS has effectively undercut the eligibility requirements for

27

an adjustment of status set forth by statute.

Defs.' Reply

This argument is unavailing because the two eligibility
An alien is only eligible for an

8 U.S.C. § 1255(a).

Congress has expressly stated

Id. § 1255(k).

If an alien works even one day in unauthorized

28

13

For these reasons, the Court finds that 8 C.F.R. §

1
2

204.5(m)(4), (11) is ultra vires to the INA and, thus, may not be

3

applied to Plaintiffs.5

4

B.

Plaintiffs' Advance Parole Revocation Claims

5

Plaintiffs also contend that Defendants violated their due

6

process rights by revoking Mir and Zahera's advance parole without

7

notice and subsequently paroling them into the United States in a

8

manner that prevented them from adjusting their status.

9

at 19-25.

Pls.' MSJ

Defendants respond that they provided notice and that

United States District Court

For the Northern District of California

10

Mir and Zahera were not prejudiced by the manner in which they were

11

paroled into the United States because, regardless of their parole

12

status, Mir and Zahera were precluded from renewing their

13

adjustment of status applications.

14

Court agrees with Plaintiffs.

Defs.' Reply at 12-15.

The

15

Individuals who apply for adjustment of status and whose

16

applications are pending may apply for advance permission to depart

17

and return to the United States.

18

is called advance parole.

19

immigration judge has jurisdiction to adjudicate a denied

20

application for adjustment of status filed by an arriving alien who

21

enters the country pursuant to the terms of a grant of advance

22

parole.

23

jurisdiction.

24

5

25
26
27
28

8 C.F.R § 212.5.

Such permission

Under 8 C.F.R. § 1245.2(a)(1)(ii), an

However, an immigration judge otherwise lacks
8 C.F.R. § 1245.2(a).

When DHS wishes to revoke an

Plaintiffs also argue that application of the amendments to 8
C.F.R. § 204.5(m) to their Form I-360 petition is impermissibly
retroactive because the amendments were promulgated after their
petition had been filed. This argument appears to lack merit since
the preamble to the final rule states: "All cases pending on the
rule's effective date and all new filings will be adjudicated under
the standards of this rule." 73 Fed. Reg. at 72285. In any event,
the Court need not reach this issue as it has found that the
regulation is ultra vires to the INA.

14

1

advance parole that has been previously given, it is required that

2

"parole shall be terminated upon written notice to the alien and he

3

or she shall be restored to the status that he or she had at the

4

time of parole."

8 C.F.R. § 212.5(e)(2)(i).

5

The Seventh Circuit addressed these regulations under similar

6

factual circumstances in Samirah v. Holder, 627 F.3d 652 (7th Cir.

7

2010).

8

advance parole and a Form I-512L travel document so that he could

9

visit his ill mother outside the United States.

In Samirah, as in this case, the plaintiff was granted

627 F.3d at 654-

United States District Court

For the Northern District of California

10

55.

11

after he departed the United States and he was prohibited from

12

returning.

13

plaintiff was entitled to reenter the United States to pursue his

14

application for adjustment of status.

15

reasoned that, under 8 C.F.R. § 212.5(e)(2)(i), the plaintiff was

16

entitled to restoration of status -- specifically, to that of an

17

alien eligible for an adjustment of status.

18

rejected the government's arguments that revocation of the

19

plaintiff's advance parole made him inadmissible and that he needed

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a fresh grant of parole to be readmitted.

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As in this case, the plaintiff's advance parole was revoked

Id. at 655.

The Seventh Circuit found that the

Id. at 665.

The court

Id. at 655.

Id.

The court

The court stated:

To require the alien to obtain a fresh grant of parole
would contradict both the regulation and the form [I512L] — the form because it is the equivalent of a visa,
and the regulation because it requires that the bearer's
status as of when advance parole was granted be restored
when the parole ends.

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23
24
25

Id.

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no persuasive argument explaining why the Court should not follow

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the Seventh Circuit.

Defendants insist that Samirah was wrongly decided, but offer

28

15

In the instant action, Defendants violated Plaintiffs' due

1
2

process rights in at least two ways.

First, in violation of 8

3

C.F.R. § 212.5(e)(2)(i), Defendants prevented Mir and Zahera from

4

returning to the United States on January 25, 2011, despite the

5

fact that Mir and Zahera's advance parole did not expire until

6

March 16, 2011 and Defendants had not yet provided them with

7

written notice that their advance parole had been terminated.

8

their papers, Defendants "do not concede" that they barred Mir and

9

Zahera from returning on January 25, 2011 or at any time prior to

In

United States District Court

For the Northern District of California

10

the notice of revocation issued on January 31, 2011.

However,

11

Defendants do not offer any evidence to the contrary.

In any

12

event, Defendants do not dispute that they barred Mir and Zahera

13

from reentering the country between January 31, 2011 and April 25,

14

2011, which gives rise to the second due process violation.

15

Samirah, Mir and Zahera were entitled to return to the United

16

States after Defendants revoked their advance parole so that they

17

could renew their applications for an adjustment of status.

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violation of Plaintiffs' due process rights, Defendants prevented

19

Mir and Zahera from returning until April 25, 2011, over a month

20

after their advance parole documents had expired.

21

Zahera entered the country on expired parole documents and

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Defendants refused to restore them to their prior status, Mir and

23

Zahera were barred from renewing their applications for adjustment

24

of status before an immigration judge.

Under

In

Because Mir and

Defendants argue that applying for an adjustment of status is

25
26

not an immigration status.

Defs.' Reply at 13.

This argument was

27

expressly rejected by the Seventh Circuit in Samirah.

28

657.

627 F.3d at

The Court declines to reach a different conclusion here.

16

1

Defendants also argue that even if Plaintiffs had remained inside

2

the United States, they were barred from renewing their

3

applications for adjustment of status because, under 8 C.F.R. §

4

1245.2(a)(1)(ii), they never established their eligibility for a

5

special immigrant religious worker visa.

6

13.

7

Defendants' argument lacks merit.

8

special immigrant religious worker visa was denied under 8 C.F.R. §

9

204.5(m)(4), (11), which the Court has found to be inconsistent

See Defs.' Reply at 12-

In light of the Court's findings in Section IV.A. above,
Plaintiffs' petition for a

United States District Court

For the Northern District of California

10

with the INA and, thus, contrary to law.

Absent 8 C.F.R. §

11

204.5(m)(4), (11), Plaintiffs may be eligible for a special

12

immigrant religious worker visa and, consequently, may also be

13

eligible for an adjustment of status.
Accordingly, the Court finds that the manner in which Mir and

14
15

Zahera were paroled into the United States violated their due

16

process rights.

17
18
19

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs' motion

20

for summary judgment and DENIES Defendants' cross-motion for

21

summary judgment.

22

Security's regulatory amendments at 8 C.F.R. § 204.5(m)(4), (11),

23

requiring the beneficiary of a Form I-360 petition to have been

24

employed either abroad or in lawful immigration status in the

25

United States continuously for at least the two-year period

26

immediately preceding the filing of the petition, are ultra vires

27

to the Immigration and Nationality Act.

28

application of 8 C.F.R. § 204.5(m)(4), (11) to Plaintiffs' Form I-

The Court finds that the Department of Homeland

17

Accordingly, the

1

360 petition was contrary to law.

The Court further finds that

2

Defendants' failure to restore Plaintiffs to their prior status

3

upon revoking their advance parole was contrary to law and a

4

violation of their due process rights.

5

Plaintiffs Mir and Zahera's return to the United States on April

6

25, 2011 shall be deemed to be on their revoked advance parole

7

documents or that Mir and Zahera otherwise be deemed eligible to

8

renew their adjustment status applications

9

judge in the removal proceedings already initiated against them.

The Court ORDERS that

before an immigration

United States District Court

For the Northern District of California

10

The accrual of unlawful presence during the duration of this action

11

is deemed stayed since Mir and Zahera's return to the United States

12

on April 25, 2011.

13
14

IT IS SO ORDERED, ADJUDGED, AND DECREED.

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16
17

Dated: February 1, 2012
UNITED STATES DISTRICT JUDGE

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