by President Bush on April 11, 1990, following the Tiananmen Square incident. Among other things, this Order directed the Attorney General to defer "enforced departure" proceedings until January 1, 1994, for all PRC nationals who were in the United States on or before June 5, 1989, up to and including April 11, 1990. The Order also directed the Attorney General "to facilitate travel [by PRC nationals] across borders of other nations and reentry in the United States in the same status such PRC nationals had on departure."
On August 9, 1993, plaintiff filed an application for Advance Parole (Form I-131) to allow him to return to the United States after a two-month trip to the PRC which began on July 20, 1993. To support his application, plaintiff attached a telegram, dated July 28, 1993, which stated that his mother was seriously ill. On August 11, 1993, INS District Director William J. Carroll denied plaintiff's application for advance parole, stating, "based on . . . review [of plaintiff's case] it has been determined that a favorable exercise of discretion [as provided in INS regulation, 8 U.S.C. § 212.5] in this matter is not warranted." The parole regulations at 8 C.F.R. § 212.5 give the district director discretion in deciding whether to grant an application for advance parole. Section 212.5(b) provides that parole may not be granted to an alien who requests it "for the sole purpose of seeking adjustment of status under section 245a of the Act." 8 C.F.R. § 212.5.
On September 21, 1993, plaintiff filed an Application to Register Permanent Residence of Adjustment Status (Form I-485). On October 7, 1993, Thomas Cook, Acting Director of INS Eastern Service Center denied plaintiff's application. The denial letter states that the CSPA "does not give [plaintiff] a lawful status in the United States" because plaintiff was not inspected, admitted or paroled when he entered the United States. Admin. Rec. at 3. The letter further states, "entering the United States without inspection renders [plaintiff] ineligible for adjustment under Section 245 of the [Immigration and Nationality] Act ('INA')." Id. at 4.
This case, one of first impression under the Chinese Student Protection Act ("CSPA"), Pub. L. No. 102-404, 106 Stat. 1969, presents two main issues: (1) does the CSPA allow PRC nationals who enter the United States without inspection to adjust their status, and (2) does INS's August 13, 1993 Cable No. 5 constitute an invalid agency rule.
A. Does the CSPA cover PRC nationals who enter the United States without inspection?
Plaintiff claims he should benefit from the protections of the CSPA because he satisfies all three of the Act's requirements: (1) he is an alien who is a national of the PRC described in Executive Order 12711;
(2) he has resided continuously in the United States since April 11, 1990, except for brief casual absences; (3) he was not physically present in the PRC for longer than ninety days after June 1989 and before the date of enactment of the CSPA. Plaintiff argues that because E.O. 12711 applied to PRC nationals who entered the United States with inspection and PRC nationals who entered without inspection, the CSPA must confer adjustability on both classes of PRC nationals.
Defendant argues that the plain language of the CSPA indicates that the Act does not apply to all PRC nationals who seek permanent residency in the United States. Rather, the Act applies only to those PRC nationals who apply for adjustment of status under § 245 of the INA. According to defendant, an alien applying for an adjustment of status must first be inspected and admitted or paroled into the United States before the alien has a legal status that can be adjusted under the CSPA (in the case of PRC nationals) or under the INA (in the case of other nationals).
Section 2 of the CSPA expressly waives § 245(c) of the INA. Section 2 of the CSPA provides:
Sec. 2. Adjustment to lawful permanent resident status of certain nationals of the People's Republic of China.
(a) In general -- . . . whenever an alien described in subsection (b) applies for adjustment of status under section 245 of the Immigration and Nationality Act during the application period (as defined in subsection (e)) the following rules shall apply with respect to such adjustment: . . . (5) Section 245(c) of such Act shall not apply.