Ni v. United States Citizenship and Immigration Services for the Memphis, Tennessee Sub-Office et al

Filing 33

ORDER granting the Government's Motion for Summary Judgment; denying Plaintiff's Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 08/21/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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ZHOU PING NI, an individual,
Plaintiff,
v.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; JANET
NAPOLITANO, in her official
capacity as Secretary, U.S.
Department of Homeland
Security; ALEJANDRO MAYORKAS,
in his official capacity as
Director, U.S. Citizenship &
Immigration Services; LYNEUL
W. DENNIS, in his official
capacity as Field Office
Director, U.S. Citizenship &
Immigration Services, Memphis
Tennessee,
Defendants.

No. 11-2482

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Before the Court are Plaintiff Zhou Ping Ni’s (“Ni”) Motion
for

Summary

Defendants

Judgment
the

and

United

the

Motion

States

for

Summary

Citizenship

and

Judgment

of

Immigration

Services (“USCIS”), Janet Napolitano, in her official capacity
as the Secretary of the Department of Homeland Security (“DHS”),
Alejandro

Mayorkas,

in

his

official

capacity

as

Director

of

USCIS, and Lyneul W. Dennis, in his official capacity as the

Field

Office

Director

of

(collectively, “Defendants”).

USCIS

in

Memphis,

Tennessee

(Pl.’s Mot. for Summ. J., ECF No.

24; Defs.’ Mot. for Summ. J., ECF No. 23.)

Defendants responded

to Ni’s Motion for Summary Judgment on April 30, 2012, and Ni
replied on May 7, 2012.
ECF No. 31.)

(Defs.’ Resp., ECF No. 27; Ni’s Reply,

Ni responded to Defendants’ Motion on April 30,

2012, and Defendants replied on May 7, 2012.
No. 28; Defs.’ Reply, ECF No. 30.)

(Ni’s Resp., ECF

For the following reasons,

the Court GRANTS Defendants’ Motion and DENIES Ni’s Motion.
I.

Background
The

parties

rely

on

the

administrative

matter, but dispute the application of law.
the

People’s

Republic

of

China.

Record 404, ECF No. 22 (“CAR”).)

record

in

this

Ni is a citizen of

(Certified

Administrative

On February 17, 1994, Ni

arrived at John F. Kennedy Airport (“JFK”).

(Id. 407.)

He

carried no travel documents because he had destroyed them on the
airplane.
United

(Id.)

States

Officers

of

as

the

On arrival, he applied for admission into the
an

immigrant

Immigration

&

without

the

interview,

Ni

visa.

Naturalization

intercepted Ni at JFK and interviewed him. 1
After

a

was

served

(Id.

Service

411.)

(“INS”)

(Id. 407; 333-335.)
with

Form

I-546,

an

Order to Appear for Deferred Inspection, and released on his own
1

The INS ceased to exist in 2003, when most of its functions were transferred
to three branches of the Department of Homeland Security: United States
Citizenship and Immigration Services, United States Immigration and Customs
Enforcement, and United States Customs and Border Protection.

2

recognizance.

(Id. 407.)

Form I-456 instructed him to appear

at

offices

March

the

INS’s

inspection.

(Id. 407.)

on

10,

1994,

to

complete

his

Ni appeared on March 10 and Immigration

Inspector J. Dupuy interviewed him.

(Id. 406.)

The day after

the interview, Ni was served with Legacy INS Form I-22, which
informed him that he was not admissible because he had no valid
immigration visa, travel document, or non-immigrant visa, and
scheduled him for an exclusion hearing before an immigration
judge.

(Id. 404.)

Before

the

immigration

judge,

Ni

conceded

that

he

excludable but moved for asylum or withholding of removal.
271-2.)
for

was
(Id.

The immigration judge found that Ni was not eligible

asylum

deportation.

or

withholding

of

removal

and

recommended

his

(Id. 322.)

Ni appealed to the Board of Immigration Apeals (“BIA”),
which denied his appeal on April 6, 1995.

(Id. 258, 248.)

Ni

moved to reopen his asylum application in December of 2001, but
his motion was denied by the BIA on April 30, 2003. (Id. 229,
221.)

Ni was served with notice to depart the United States on

November 30, 2004, but he has not left.

(Id. 220.)

Ni’s son, Chun Jin Ni, is a United State citizen.
203, 208.)

(Id.

On September 4, 2009, Chun Jin Ni filed an I-130,

“Petition for an Alien Relative,” on Ni’s behalf.

(Id. 200.)

USCIS granted the petition on September 24, 2010, and recognized
3

the family relationship.

(Id. 200.)

Simultaneously with the

filing of his son’s petition, Ni filed an I-485, an application
for adjustment of status pursuant to 8 U.S.C. § 1255.
186.)

(Id.

On October 1, 2010, USCIS denied Ni’s application on the

ground that he was never admitted into the United States.

(Id.

21.)

was

also

not

been

paroled into the United States and did not enter lawfully.

(Id.

Ni’s

denied.

3.)

motion

(Id.

to

1.)

reopen

The

his

Denial

I-485

stated

application
that

he

had

Ni filed this Complaint on June 14, 2011, to challenge
(Id. 32.)

USCIS’s denial of his adjustment of status.
II.

Jurisdiction

Although Defendants do not contest jurisdiction, the Court
has an independent obligation to ensure that it has subjectmatter jurisdiction.
(6th

Cir.

Daft v. Advest, Inc., 658 F.3d 583, 590

2011).

Ni

brings

suit

against

Defendants

for

a

declaratory judgment that the agency’s action was arbitrary and
capricious.

The Administrative Procedure Act (“APA”) provides

that “[a] person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof.”
jurisdiction

5
if

U.S.C.
the

discretion by law.”

§

702.

“agency

The
action

5 U.S.C. § 701(a).

4

APA
is

does

not

committed

to

provide
agency

Eight

U.S.C.

§

1252(a)(2)(B)(I)

provides

that

“no

court

shall have jurisdiction to review . . . any judgment regarding
the granting of relief under section . . . 1255.”

A rejection

of an adjustment of status is a matter of agency discretion and
is not reviewable.
Cir. 2005).

Pinho v. Gonzales, 432 F.3d 193, 203 (3d

However, when a denial is a matter of law, agency

discretion is not dispositive, and the agency’s determination is
subject to judicial review.

Id. at 204; accord Ruiz v. Mukasey,

552 F.3d 269, 276 n.5 (2d Cir. 2009); Ayanbadejo v. Chertoff,
517 F.3d 272, 276077 (5th Cir. 2008).
USCIS

committed

a

clear

legal

error.

Ni also alleges that the
(Compl.

¶

25.)

The

decision to deny Ni an adjustment of status is reviewable, and
the Court has jurisdiction.
III. Standard of Review
Under

Federal

Rule

of

Civil

Procedure

56,

on

motion

of

either party, the court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “However, in the case of a district court
reviewing

final

agency

action,

the

rules

governing

summary

judgments do not apply because of the limited role of a court in
reviewing the administrative record.”

Forest Serv. Employees

For Envtl. Ethics v. United States Forest Serv., 689 F. Supp. 2d

5

891, 894-95 (W.D. Ky. 2010) (citing City of Cleveland v. Ohio,
508 F.3d 827, 838 (6th Cir. 2007)).
The APA provides that the “reviewing court shall . . . hold
unlawful and set aside agency action, findings, and conclusions
found to be arbitrary, capricious, an abuse of discretion, or
otherwise
706(2)(A).

not

in

accordance

with

the

law.”

5

U.S.C.

§

The APA limits the scope of judicial review to a

review of the administrative record.

5 U.S.C. § 706 (“[T]he

court shall review the whole record or those parts of it cited
by a party.”).

The arbitrary and capricious standard is “narrow

and the court should not substitute its judgment for that of the
agency.”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

Although the court

is deferential to the agency decision, the agency must “examine
the relevant data and articulate a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made.”

Forest Serv., 689 F. Supp. 2d at

895 (citation and internal quotation marks omitted).
IV.

Analysis

Ni seeks an adjustment of status.

To be eligible for a

status adjustment, an alien must be “inspected and admitted or
paroled into the United States . . . [and] admissible to the
United States for permanent residence.”

8 U.S.C. § 1255(a).

“Any alien who entered the United States in transit without a
6

visa” or “who was not admitted or paroled following inspection
by an immigration officer” is not eligible for an adjustment of
status.
aliens

8 C.F.R. § 245.1.
are

eligible

to

“By statute, two categories of

apply.

First

is

an

alien

who

was

inspected and admitted.

Second is an alien who was paroled.”

Succar

F.3d

v.

Ashcroft,

394

8,

24

(1st

Cir.

2005);

accord

Delgado-Sobalvarro v. United States Att’y Gen., 625 F.3d 782,
787 (3rd Cir. 2010).
There

are

two

types

of

parole:

“parole

in

the

United

States” pursuant to 8 U.S.C. § 1182(d)(5)(A) and “conditional
parole” pursuant to 8 U.S.C. § 1226(a)(2)(B).

Parties paroled

conditionally are not entitled to an adjustment of status, which
Ni does not dispute.
(2d Cir. 2011).

Cruz-Miguel v. Holder, 650 F.3d 189, 198

Ni asserts he was paroled under 8 U.S.C. §

1182(d)(5)(A), which provides that the Attorney General may:
[i]n his discretion parole into the United States
temporarily . . . on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any
alien applying for admission to the United States, but
such parole of such alien shall not be regarded as
admission of the alien and when the purposes of such
parole shall . . . have been served that alien shall
fortwith return or be returned to the custody form
which he was paroled.
8 U.S.C. § 1182(d)(5)(A); see also Castillo-Padilla v. United
States AG, 417 F. App’x 888, 890 (11th Cir. 2011) (recognizing
that parole into the United States pursuant to § 1182(d)(5)(A)
makes one eligible for adjustment of status).
7

On February 17, 1994, Ni was served with an INS Form I-546.
(CAR 407.)

That form provided that Ni appeared to be excludable

under and did not appear to be admissible to the United States
under 8 U.S.C. §§ 1182(a)(7)(A)(i)(I) and (a)(7)(B)(i)(I). 2
form

noted

that

the

INS

would

defer

ruling

on

Ni’s

The

status

pending the outcome of the prosecution of the individual who
helped

him

enter

the

United

deferred inspection.

States,

and

Ni

was

paroled

for

Parole for deferred inspection is allowed

under 8 C.F.R. § 235.2, which provides that an examining officer
can defer examination if the officer “has reason to believe that
the alien can overcome a finding of inadmissibility.”
C.F.R.

§

235.2

accomplished
1182(d)(5)]

provides

pursuant
for

the

deferred inspection.”

to

that
the

period

“such

deferral

provisions

of

time

of

shall

[8

necessary

Eight
be

U.S.C.

to

§

complete

See also Basra v. Napolitano, No. 09-

4264, 2010 U.S. Dist. LEXIS 25430, at *5 (D. N.J. March 17,
2010)

(holding

that

deferred

parole

“is

consistent

with

the

limited exception under 8 U.S.C. § 1182(d)(5)(A).”).
Defendants
U.S.C.

§

argue

1182(d)(5),

that

Ni

was

not

but

an

agency’s

paroled

pursuant

interpretation

of

to

8

its

regulations is only entitled to deference if the regulation is
ambiguous.

Covenant Med. Ctr., Inc. v. Sebelius, 424 F. App’x

2

Section 1182 (a)(7)(A)(i)(I) provides that aliens who lack a valid visa,
reentry permit, border crossing identification card, or other entry document
are inadmissible. Section 1182 (a)(7)(B)(i)(I) provides that nonimmigrants
who lack a valid passport are inadmissible.

8

434, 436 (6th Cir. 2011) (citing Bowles v. Seminole Rock & Sand
Co.,

325

U.S.

410,

414

(1945)).

The

applicable

regulations

provide that deferred parole is parole pursuant to § 1182(d)(5),
and Ni was paroled into the United States.
Ni’s parole did not, however, allow him to remain in the
United States indefinitely.
November 21, 1994.
Ni’s

request

ordered

for

that

His asylum claim was rejected on

(CAR 275-323.)
withholding

Ni

be

The immigration judge denied

of

deported

deportation
pursuant

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

and

asylum

and

8

U.S.C.

§§

to

Ni was served with an

order to depart from the United States on November 30, 2004.
(CAR 220.)
Section 1182(d)(5) provides that when “the purposes of []
parole. . . have been served the alien shall forthwith return or
be

returned

to

the

custody

from

which

he

was

paroled

and

thereafter his case shall be dealt with in the same manner as
that of any other applicant for admission to the United States.”
8

U.S.C.

§

1182(d)(5)(A).

“[A]n

alien

status . . . when parole is revoked.”

derives

no

superior

Samirah v. Holder, 627

F.3d 652, 660 (7th Cir. 2010); see also Ashraf v. United States
Immigration & Customs Enforcement, No. 1:10 CV 2482, U.S. Dist.
LEXIS 28620, at *5-7 (N.D. Ohio March 21, 2011).
parole

was

revoked,

he

was

no

longer

adjustment of status based on his parole.
9

able

to

Once Ni’s

apply

for

an

Ni was never admitted into the United States.

Parole under

8 U.S.C. § 1182(d)(5) “shall not be regarded as an admission of
the alien” into the United States.

See also Cruz-Miguel, 650

F.3d at 198 (“[S]uch parole does not grant the alien ‘admission’
to the United States.”).

Ni is not eligible for an adjustment

of status.
V.

Conclusion

For the foregoing reasons, the Defendants’ Motion for Summary
Judgment is GRANTED, and Ni’s Motion for Summary Judgment is
DENIED.

So ordered this 21st day of August, 2012.

s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

10