Appeal from the United States District Court for the District of Columbia (No. 93cv02172)
Before: Wald, Silberman and Williams, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Wald.
This case involves the relationship between the Chinese Student Protection Act, 8 U.S.C. Section(s) 1255 note (1994) ("CSPA"), and the Immigration and Nationality Act, 8 U.S.C. Section(s) 1100, et seq. (1994) ("INA"). When appellant Lin Qi-Zhuo, a Chinese national who has resided in the United States since 1987, applied for adjustment of his immigration status to that of a lawful permanent resident under the CSPA, the Immigration and Naturalization Service ("INS") denied his application. The INS based its denial on the conclusion that the CSPA, which alters standard immigration requirements for certain nationals of the People's Republic of China ("PRC"), does not exempt covered nationals from the basic INA requirement that status adjustment is available only to those non-immigrants who have been "inspected and admitted or paroled into the United States." 8 U.S.C. Section(s) 245(a).
Because appellant initially entered the United States illegally, and was never "admitted" or "paroled," the INS determined that he was unqualified for the adjustment. The district court, denying Lin's request for a declaratory judgment that the CSPA permits adjustment of covered aliens regardless of their illegal entry, granted summary judgment to the INS. Because we agree that the text and structure of the CSPA makes clear that the Act does not exempt covered PRC nationals from the INA's threshold inspection requirement, we affirm the district court.
In general, the INA divides foreign nationals in the United States into two categories: "immigrants," who intend to remain permanently in the United States, and "nonimmigrants," who enter the country only for a limited time and purpose. See Jain v. INS, 612 F.2d 683, 686 (2d Cir. 1979), cert. denied, 446 U.S. 937 (1980); Pan v. Reno, 879 F. Supp. 18, 19 (S.D.N.Y. 1995). Section 245 of the INA, 8 U.S.C. Section(s) 1255, sets out the standard process by which a nonimmigrant can adjust to the status of an immigrant. Subsection (a) of Section(s) 245 makes clear that adjustment is available only to those nonimmigrants who were "inspected and admitted or paroled into the United States." 8 U.S.C. Section(s) 1255(a). Subsection (c) of Section(s) 245 excludes from eligibility those aliens who, even though originally admitted legally into the country, have let their legal status lapse while residing here. 8 U.S.C. Section(s) 1255(c) ("Subsection (a) of this section shall not be applicable to ... an alien ... who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.").
On April 11, 1990, in the wake of the Tiananmen Square uprising in Beijing, President Bush signed Executive Order 12,711, which temporarily suspended-until January 1, 1994-the enforced departure of any PRC national who was in the United States "on or after June 5, 1989, up to and including the date of [the] Order." Executive Order 12,711, 55 Fed. Reg. 13,897 (1990), reprinted in 8 U.S.C. Section(s) 1100 note (1994) ("EO 12,711"). The Order also directed the Secretary of State and the Attorney General to provide for the "maintenance of lawful status for purposes of adjustment of status ... for such PRC nationals who were in lawful status at any time on or after June 5, 1989." EO 12,711, at 3(b).
In 1992, Congress passed the CSPA, which permanently altered the standard INA adjustment process for Chinese nationals who met the statute's specific residency requirements. *fn1 Subsection (a) of the CSPA outlines the special eligibility rules that apply with respect to "an alien described in subsection (b) [who] applies for adjustment of status under section 245 of the [INA]." CSPA Section(s) 2(a). Subsection (b) defines "aliens covered" in terms of three requirements: first, the alien applying for adjustment must be a PRC national as described in EO 12,711 (i.e., must have been in the United States on or after June 5, 1989, up to and including the date of the Order); second, the PRC national must have resided continuously in the United States since April 11, 1990; and third, he or she must not have been physically present in the PRC for more than 90 days between April 11, 1990, and the date of enactment of the CSPA (October 9, 1992). CSPA Section(s) 2(b).
The parties to this dispute agree that appellant qualifies as a covered alien under CSPA Section(s) 2(b), and therefore his application should be treated under the rules set forth in the CSPA rather than the usual INA process. The parties disagree, however, as to the scope of these rules, set out in subsection (a), authorizing adjustment. CSPA Section(s) 2(a). Among the "rules" that apply to covered aliens seeking adjustment under Section(s) 245 is an express exemption from Section(s) 245(c) of the INA, which under normal circumstances makes adjustment unavailable to non-immigrants whose legal status has lapsed at the time of application. CSPA Section(s) 2(a)(5). Thus, the CSPA is clear that a protected PRC national, as distinguished from another type of nonimmigrant, can apply for adjustment even if he or she has not maintained a lawful immigration status.
The heart of appellant's case is his claim that, in addition to its explicit exemption from Section(s) 245(c) of the INA, the CSPA contains an implicit exemption for covered aliens from the threshold inspection requirement of Section(s) 245(a). To support his theory, Lin argues that subsection (b) of the CSPA, outlining the qualifications for "aliens covered," provides an exhaustive and exclusive list of the requirements for adjustment of status under the Act, and does not include lawful entry as a ...