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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 SHIA ASSOCIATION OF BAY AREA, et al., United States District Court For the Northern District of California 9 10 Plaintiffs, 11 v. 12 UNITED STATES OF AMERICA, et al., 13 14 Defendants. 15 ) Case No. 11-1369 SC ) ) ORDER GRANTING PLAINTIFFS' ) MOTION FOR SUMMARY JUDGMENT ) ) ) ) ) ) ) ) ) ) 16 17 I. 18 INTRODUCTION Plaintiffs in this case are a Muslim mosque, Shia Association 19 of the Bay Area ("SABA"); its Imam, Dr. Nabi Raza Mir ("Mir"); 20 Mir's wife, Syeda Gulshan Zahera ("Zahera"); and the couple's five 21 sons, ages three, five, seven, sixteen, and seventeen. 22 the United States from India over ten years ago, at the invitation 23 of SABA, and his wife and sons soon followed.1 24 served as SABA sole minister. 25 trying to convert Mir and his family's temporary visa status to 26 permanent residence. Mir came to Since 2002, Mir has Since 2005, Plaintiffs have been Mir and his family entered the United States 27 1 28 Mir's three youngest sons were born in the United States and are now United States citizens. 1 legally and there is no indication that they are a threat to 2 national security, have broken any laws, or have been anything but 3 diligent in pursuing their various immigration petitions. 4 Plaintiffs' petitions have been denied and delayed at every turn by 5 the Department of Homeland Security ("DHS"). 6 Plaintiffs' application for a special immigrant religious worker 7 visa based on regulations which had been changed while Plaintiffs' 8 application was pending on appeal to the Administrative Appeals 9 Office ("AAO"). However, In 2008, DHS denied United States District Court For the Northern District of California 10 In December 2010, Mir, Zahera, and their three youngest sons 11 left the United States -- in possession of valid travel documents 12 -- to visit Mir's ill mother in India. 13 Defendants effectively trapped Mir and Zahera outside of the United 14 States by revoking their travel documents. 15 returned to the United States, pursuant to a stipulation between 16 the parties, they were placed into removal (i.e., deportation) 17 proceedings. 18 constitutional and statutory violations. 19 Several days later, When Mir and Zahera Plaintiffs filed this action, alleging various Now before the Court are cross-motions for summary judgment 20 filed by Plaintiffs and Defendants United States of America; Janet 21 Napolitano, Secretary of Homeland Security; Alejandro Mayorkas, 22 Director of the United States Citizenship and Immigration Service 23 ("USCIS"); Rosemary L. Melville, Director of USCIS California 24 Service Center; Eric Holder, Attorney General; Hillary Clinton, 25 Secretary of State; Perry Rhew, Director of USCIS Administrative 26 Appeals; and David Aguilar, Deputy Commissioner, United States 27 Customs and Border Protection. 28 ("Defs.' MSJ"). ECF Nos. 24 ("Pls.' MSJ"); 25 These motions are fully briefed. 2 ECF Nos. 26 1 ("Pls.' Reply"); 29 ("Defs.' Reply"). Pursuant to Civil Local Rule 2 7-1(b), the Court finds the motions suitable for determination 3 without oral argument. 4 summary judgment in favor of Plaintiffs. For the following reasons, the Court GRANTS 5 6 II. BACKGROUND 7 A. 8 In light of the complexity of United States immigration law, 9 Legal Framework the Court first reviews the statutes and regulations central to the United States District Court For the Northern District of California 10 resolution of this case. 11 ("INA"), up to 5000 special immigrant visas may be granted to 12 religious workers each year. 13 1101(a)(27)(C). 14 United States and many individuals who are already present in this 15 country entered on a non-immigrant visa, also known as an R-1 visa. 16 See Id. § 1101(a)(15)(R). 17 in the United States for up to five years. 18 1101(a)(15)(R)(ii). 19 unless they seek to "adjust status" prior to their R-1 visa's 20 expiration. 21 her status will be unlawful. 22 the alien accrues a period of unlawful presence of more than 180 23 days, the alien is statutorily ineligible for adjustment of status. 24 Id. § 1255(k). 25 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 26 worker visa is the submission of a Form I-360 petition by a 27 sponsoring religious organization. 28 least the two-year period immediately preceding the time of 3 The INA provides that, for at 1 application, a special immigrant religious worker must have been a 2 member of a "bona-fide" religious denomination and have been 3 carrying on the vocation of a minister of that religious 4 denomination. 5 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 6 for eligibility. 7 promulgated a final rule amending those regulations so that it 8 could better detect and deter fraud and other abuses in the 9 religious work program. 73 Fed. Reg. 72276 (Nov. 26, 2008). Under United States District Court For the Northern District of California 10 the old regulations, persons could qualify for special immigrant 11 religious worker classification if, among other things, they had 12 been working in a qualified religious vocation "continuously 13 (either abroad or in the United States) for at least the two-year 14 period immediately preceding the filing of the [Form I-360] 15 petition." 16 a petitioner's two years of qualifying work experience was 17 performed in the United States, then that work must have been 18 performed "in lawful immigration status." 19 (11) (2012). 8 C.F.R. § 204.5(m) (2007). Under the amended rule, if 8 C.F.R. § 204.5(m)(4), 20 In addition to filing a Form I-360 petition, an alien seeking 21 to adjust status to that of a lawful permanent resident must apply 22 for adjustment of status through Form I-485. 23 alien may adjust status if (1) the alien makes an application; (2) 24 the alien is eligible to receive a visa; and (3) a visa is 25 immediately available. 26 245.2(a)(2)(i)(B), special immigrant religious workers may only 27 file a Form I-485 application with an approved Form I-360 8 U.S.C. § 1255(a). 28 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 3 status at the same time. Other classes of alien workers may file a Form I-360 4 B. Plaintiffs' Arrival in the United States 5 Upon SABA's invitation, Mir entered the United States with an Pls.' Ex. A.3 Mir's R-1 6 R-1 nonimmigrant visa in February 2002. 7 visa was set to expire in early 2007. 8 his wife and the couple's two sons joined Mir in the United States, 9 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. 11 Pls.' Ex. W. 12 C. Plaintiffs' Form I-360 Petitions 13 On April 11, 2005, SABA filed a Form I-360 petition for Mir, 14 the first step toward his religious worker immigrant visa, so that 15 Mir could continue to serve as SABA's minister on a permanent 16 basis. 17 appealed to the AAO, and then vacated and remanded back to USCIS. 18 2 19 20 21 22 23 24 25 26 27 28 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."). 5 1 Pls.' Ex. F, G, K. 2 I-360 petition based on "unresolved inconsistencies" in the 3 petition concerning Mir's compensation and continued employment 4 status and whether SABA had made Mir a "qualifying job offer." 5 Pls.' Ex. M. 6 petition on November 15, 2007 -- over two years after SABA had 7 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 8 9 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 10 Mir. 11 months of unlawful presence in the United States, as his R-1 12 nonimmigrant visa had expired earlier that year. 13 2007, USCIS denied SABA's second I-360 petition for the same 14 reasons it denied the first. 15 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 16 the visa eligibility regulations to require that qualifying work 17 done in the United States must have been performed in lawful 18 immigration status. 19 AAO vacated USCIS's denial of SABA's second Form I-360 petition, 20 remanding it to USCIS with instructions to issue a request for 21 evidence and a new decision in accordance with the new regulations. 22 Pls.' Ex. Q. 23 second Form I-360 petition for the same reasons it denied the 24 petition in 2007. 25 affirmed USCIS's decision on January 4, 2011. 26 AAO disagreed, in part, with USCIS's findings regarding SABA's job 27 offer, but determined that Mir failed to satisfy the new regulatory 28 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 6 Defs.' Ex. J. Id. The The AAO found that 1 Mir's R-1 nonimmigrant religious worker status had expired on 2 January 1, 2007, five months before SABA had filed his second Form 3 I-360 petition, and that Mir had continued to work as a minister 4 after his R-1 status expired. 5 concluded: "[SABA] has acknowledged . . . that [Mir] worked without 6 authorization during the two year qualifying period. 7 regulations now in effect at 8 C.F.R. §§ 204.5(m)(4) and (11), we 8 must find that [Mir]'s admittedly unlawful employment cannot 9 qualify him from the classification sought in the present United States District Court For the Northern District of California 10 petition." Defs.' Ex. J at 1471. The AAO Under the Id. at 1473. 11 D. Plaintiffs' Applications for Adjustment of Status 12 On June 1, 2007, Mir filed Form I-485 applications for 13 adjustment of status on behalf of himself, his wife, and two of his 14 children. 15 days later because 8 C.F.R. § 245.2(a)(2)(i)(B) required that they 16 hold approved special immigrant visas before filing for an 17 adjustment of status. 18 adjustment of status again on August 21, 2009, after the Western 19 District of Washington issued a nation-wide injunction in Ruiz- 20 Diaz, effectively invalidating 8 C.F.R. 245.2(a)(2)(i)(B). 21 Ex. R. 22 been vacated by the Ninth Circuit, USCIS issued a notice of 23 decision to Mir and his family, informing them that it had denied 24 their adjustment of status applications on January 28, 2011. 25 Defs.' Ex. P, S, W, X. 26 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 28 7 On December 25, 2010, with SABA's final appeal of its Form I- 1 2 360 petition still pending before the AAO, Mir, Zahera, and their 3 three youngest children left the United States to visit Mir's ill 4 mother in India. 5 would have no problem returning to the United States because they 6 had been granted "advance parole" and a Form I-512L travel 7 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. 8 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. 11 on January 25, 2011, he and his family unsuccessfully tried to 12 check-in for their flight back to the United States. 13 The airline allegedly told Mir that the United States Embassy had 14 informed it that he and his family's advance parole had been 15 revoked and that they could not board the plane. 16 31, 2011, USCIS notified Mir and his family that their applications 17 for adjustment had been denied and their advance parole had been 18 terminated. 20 ("Compl."). 21 4 23 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. 19 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' 2 return to the United States, and on April 15, 2011, the Court 3 approved the parties' stipulation. 4 Order"). 5 his wife all of the rights and process due them under the law, 6 including the Immigration and Nationality Act, upon his return to 7 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. § 14 1182(a)(7)(A)(i)(I). 15 Appear, Mir and Zahera were removable because they were "not in 16 possession of a valid unexpired immigrant visa, reentry permit, 17 border crossing card, or other valid entry document." Pls.' Ex. at Z. The According to the Notice to Id. 18 F. Plaintiffs' Lawsuit 19 Plaintiffs' Complaint was filed on March 22, 2011, before Mir 20 and Zahera returned to the United States. The Complaint asserts 21 eleven causes of action: 22 -- lack of notice of intent to revoke advance parole; (2) violation 23 of regulations -- lack of notice of intent to revoke advance 24 parole; (3) violation of regulations and due process -- failure to 25 restore Plaintiffs to their prior status and allow them to return 26 to the United States; (4) violation of Plaintiffs' due process 27 right to renew their application for adjustment of status before a 28 neutral immigration judge; (5) violation of equal protection; (6) (1) violation of procedural due process 9 1 writ of mandamus -- seeking an order allowing Plaintiffs to return 2 to the United States; (7) violation of the Religious Freedom 3 Restoration Act of 1993; (8) violation of the Administrative 4 Procedure Act ("APA"); (9) ultra vires -- asserting Defendants' 5 2008 regulations at 8 C.F.R. §§ 204.5(m)(4) and (11) are ultra 6 vires to the organic statute; (10) due process -- asserting 7 Defendants violated Plaintiffs' due process rights by retroactively 8 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 11 the retroactive application of the 2008 regulations. 12 120. FAC ¶¶ 79- 13 Plaintiffs now move for summary judgment on the grounds that: 14 (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- 20 21 III. LEGAL STANDARD 22 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." 7 of a scintilla of evidence in support of the plaintiff's position 8 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 17 A. Validity of Amendments to 8 C.F.R. § 204.5(m)(4), (11) 18 Plaintiffs argue that Defendants exceeded their authority 19 under the INA by promulgating the November 2008 amendments to 8 20 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 20 a fresh grant of parole to be readmitted. 21 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. 22 23 24 25 Id. 26 no persuasive argument explaining why the Court should not follow 27 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. 18 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 22 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. 15 16 17 Dated: February 1, 2012 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 18

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