ALIMORADI v. USCIS - 245(k) waiver - minor, non criminal immigration violations in the interest of national security and public safety

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ARZHANG ALIMORADI, )Case No. CV 08-02529 DDP (JCx)
)
Plaintiff, )ORDER DENYING MOTION TO DISMISS
)

v.
)[Motion filed on July 7, 2008]
)
U.S. CITIZENSHIP & )
IMMIGRATION SERVICES, A)
BUREAU OF THE DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendants. )
)
__________________________ )


In this matter, Arzhang Alimoradi challenges Defendant United

States Citizenship and Immigration Services’ (“USCIS”) decision to

deny him status as a lawful permanent resident. Before the Court

is Defendant’s motion to dismiss; the issue presented is whether

the regulation used to reject Mr. Alimoradi’s application - which

does not allow USCIS, in its discretion, to ignore minor, non


criminal immigration violations in the interest of national

security and public safety - is a permissible construction of its

authorizing statute. After reviewing the materials submitted by


the parties and considering the arguments therein, the Court finds
the regulation impermissible, and therefore DENIES the motion.

I. BACKGROUND1
Plaintiff Arzhang Alimoradi, Ph.D., is a native and citizen of
Iran and the subject of an approved I-140 visa petition certifying
him as an “Outstanding Professor or Researcher” pursuant to 8

U.S.C. § 1153(b)(1)(B). This qualifies him as a “priority
worker[]” who is at the top of the list (assuming other
prerequisites are met) to obtain legal permanent residency in the
United States. Id. § 1153(b)(1). Dr. Alimoradi is a senior
researcher who specializes in Earthquake Engineering. He completed
his Ph.D. in this area at the University of Memphis in December
2004. (A.R. 79.) Among his many accomplishments, Dr. Alimoradi
has been involved with earthquake research at several prestigious
universities, is a successful science and engineering professor,
and, perhaps most notably, has “been the southern California backup
person for a major northern California earthquake clearinghouse
procedure. A clearinghouse is the focal point of coordinating
post-earthquake investigations between researchers and
organizations from around the globe in the aftermath of a major
earthquake.” (A.R. 80.) He has published articles in numerous
academic journals, and his “state-of-the-art” research “helps civil
engineers to design an earthquake resistant building structure” to
a degree that other researchers had not to this point succeeded.
1 Unless otherwise noted, all facts are either undisputed ortaken from Dr. Alimoradi’s allegations, because, on a motion todismiss for failure to state a claim, this Court must assume aplaintiff’s allegations to be true.

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(A.R. 107.) In other words, Dr. Alimoradi’s entire illustrious
career revolves around helping communities to build safely and to
prepare successfully for earthquakes, and he would like to live in
Southern California - an earthquake center.
This case arose because Dr. Alimoradi inadvertently let his
employment status lapse. Dr. Alimoradi joined the research and
development department of John A. Martin & Associates (“JAMA”) as a
senior research engineer on January 3, 2005. He was authorized to
work in the United States at this time on an Optional Practical
Training visa, which was valid until January 2, 2006. JAMA sent
Dr. Alimoradi to consult with its General Counsel, Dr. Farzad
Naeim, in order “to handle” his immigration matters and extend his
work visa. (A.R. 79.) To facilitate this process, on February 22,
2005, Dr. Naeim filed an I-140: Immigration Petition for Alien
Worker (outstanding professor/researcher), which was approved by
USCIS on August 18, 2005. The I-140 was the first step in
obtaining legal permanent residency (or, a “green card”) for Dr.
Alimoradi.

At the same time, Dr. Naeim filed an I-129: Petition for
Nonimmigrant Worker (H1B visa). The H1B visa grants temporary work
status (but not a green card) to certain individuals. As part of
preparing the I-129 petition, Dr. Naeim filed a Labor Condition
Application (ETA 9035E), which was certified by the Department of
Labor for the period August 1, 2005 through July 31, 2008. In
other words, Dr. Alimoradi, with the help of Dr. Naeim and JAMA,
applied for an H1B visa and his green card concurrently, as two
alternate means of obtaining legal work status.

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Once the I-140 petition was approved in August 2005,
certifying that a permanent resident visa was available for him,
Dr. Alimoradi took the next step in the green card process by
filing an I-485 Application to Adjust Status from that of a nonimmigrant
to a lawful permanent resident of the United States.
Because the green card application seemed to be progressing quickly
and with success, Dr. Naeim did not pursue the H1B visa route any
further. (A.R. 86.) Dr. Naeim believed, and told Dr. Alimoradi,
that the combination of the approved Labor Condition Application
obtained through the H1B process, the approved I-140, and the
pending I-485 permitted him to work at JAMA until the expiration of
the approved Labor Condition Application in July 2008. (A.R. 86.)
Dr. Naeim believed “that the mere filing of I-485 would provide Dr.
Alimoradi yet one more source of authorization to work,” in
addition to the approved Labor Condition Application. (A.R. 86.
(emphasis added).) In fact, however, Dr. Alimoradi was required to
file a different application for employment in conjunction with his
I-485: the I-765 Application for Employment Authorization. See 8

C.F.R. § 274a.12(c)(9). According to Dr. Alimoradi, he relied on
Dr. Naeim’s explanation of the prerequisites for legal employment;
as a result, Dr. Alimoradi was unaware that the Labor Condition
Application was insufficient, and that he needed instead to file an
I-765 and to obtain a valid Employment Authorization Document
(“EAD”).
On August 1, 2007, USCIS sent Dr. Alimoradi a “Request For
Evidence” questioning whether he had been properly authorized to
work after February 2, 2006. Dr. Naeim, at that point, began to
conduct further research and discovered the need for an EAD. (A.R.

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86.) He informed Dr. Alimoradi of this fact, explained how to file
the I-765, obtained the filing fee for Dr. Alimoradi from JAMA, and
urged Dr. Alimoradi to seek outside legal counsel. (A.R. 86-87.)
Dr. Alimoradi immediately filed the I-765, which was received by
USCIS on August 13, 2007. Dr. Naeim has submitted a declaration
attesting, inter alia, that “[n]either JAMA nor Dr. Alimoradi has
ever had any intention of employment without authorization for any
duration at all.” (A.R. 87.)

On October 10, 2007, USCIS sent Dr. Alimoradi an “Intent to
Deny” his I-485 application on the ground that he had worked in the
United States without authorization for more than 180 days. (A.R.
4-7.) Dr. Alimoradi challenges that determination in the instant
complaint, and Defendant USCIS has moved to dismiss.

II. ANALYSIS
A. Jurisdiction
Defendant first moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks subject matter
jurisdiction because neither the Declaratory Judgment Act (“DJA”),
28 U.S.C. § 2201, nor the Administrative Procedure Act (“APA”), 5

U.S.C. § 701, “confer independent jurisdiction over this matter.”
(Mot. To Dismiss at 10.) The Court rejects this argument because
the Ninth Circuit has long held that district courts have
jurisdiction under 28 U.S.C. § 1331 over “challeng[es resulting
from the] . . . denial of . . . applications for adjustment of
status.” Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); see
5



also Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996).
Accordingly, Defendant’s Rule 12(b)(1) motion is DENIED.2

B. Failure to State a Claim
Defendant also moves to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The
Court rejects this argument as well.

“A Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A
court can dismiss a claim only when no cognizable legal theory
exists to support the plaintiff’s claim, or when the plaintiff has
not alleged sufficient facts to support a cognizable legal theory.
See id. When considering a 12(b)(6) motion, the Court accepts all
material allegations in the complaint as true, and draws all
reasonable inferences in favor of the nonmoving party. See id. As
such, a claim will be dismissed under Rule 12(b)(6) “only if it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
(internal quotation marks omitted).

1. Statutory Framework
Section 245 of the Immigration and Nationality Act (“INA”)
sets forth when an individual is eligible to apply for adjustment
of status. An individual is not, “subject to subsection (k) of
this section,” eligible to apply for adjustment of status if he, as

2 It is of no consequence that Plaintiff’s complaint invokesthe APA and DJA as jurisdiction, rather than specificallymentioning 28 U.S.C. § 1331. Subject matter jurisdiction eitherexists, or it does not. That Plaintiff failed to name preciselythe correct language does not divest this Court of the jurisdictionit rightfully holds. Moreover, the APA and DJA providejurisdiction under § 1331 because they are federal statutes.
Defendant’s argument to the contrary is without merit.

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relevant here, “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.” 8 U.S.C. § 1255(c)(2)
(emphasis added). Subsection (k) excuses an individual from the
requirements of § 1255(c)(2) if, as relevant here, he is “eligible
to receive an immigrant visa” as an outstanding professor or
researcher under § 1153(b), and if

(1) the alien, on the date of filing an application foradjustment of status, is present in the United States pursuantto a lawful admission;
(2) the alien, subsequent to such lawful admission has not,
for an aggregate period exceeding 180 days –
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of thealien’s admission.
Id. § 1255(k). There is no dispute that Dr. Alimoradi would
qualify for the exemption in § 1255(k) except that, because of the
confusion over his I-765 application, he “engaged in unauthorized
employment” for “an aggregate period exceeding 180 days.”
Accordingly, in order to successfully challenge USCIS’s
determination that he is ineligible to apply for adjustment of
status, Dr. Alimoradi must show that his failure to maintain lawful
employment status was “through no fault of his own or for technical
reasons.”

2.
Application
a.
Applicability of the “No Fault of His Own orTechnical Reasons” Exception
The parties devote most of their briefing to debating whether
or not Dr. Naeim’s misinformation constituted ineffective
assistance of counsel such that Dr. Alimoradi’s unlawful employment
status came about “through no fault of his own.” The Court
emphasizes that, in light of the dire consequences for Dr.

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Alimoradi, Dr. Naeim’s failure to conduct a thorough and accurate

investigation into the requirements for obtaining legal work status

is truly deplorable. However, the Court need not reach the

question of ineffective assistance of counsel, because it finds

that, assuming all allegations in the complaint are true, Dr.

Alimoradi’s mistake was “through no fault of his own or for

technical reasons” within the meaning of the INA, and that

therefore it did not render him ineligible to apply for adjustment

of status.3

The phrase, “no fault of his own or for technical reasons” is

not defined in the statute. It is, however, defined in the

implementing regulations, and those regulations “limit” its

application to four categories, which both parties agree do not fit

this case.4 Instead, Plaintiff Alimoradi argues that limiting the

3 Although Dr. Alimoradi’s briefing does not focus on the“technical reasons” clause, a fair reading of his argument revealshis contention that he falls into either exception - “no fault ofhis own” or “for technical reasons”; essentially, he argues thatthe mistake was minor and unintentional, and that he diligentlyattempted to comply with all immigration requirements. Moreover,
the implementing regulations define the clauses as a whole,
suggesting they should be analyzed as one.

4 The exceptions are:

(i) Inaction of another individual or organization designatedby regulation to act on behalf of an individual and over whoseactions the individual has no control . . .; or
(ii) A technical violation resulting from inaction of theService . . . [; or]
(iii) A technical violation caused by the physical inabilityof the applicant to request an extension of nonimmigrant stay. . . [; or]
(iv) A technical violation resulting from the Service’sapplication of the maximum five/six year period of stay forcertain H-1 nurses . . . .
8 C.F.R. § 1245.1(d)(2).

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applicability of the exception to four narrow categories violates
the APA, which “commands reviewing courts to ‘hold unlawful and set
aside’ agency action that is ‘arbitrary, capricious, an abuse or
discretion, or otherwise not in accordance with law.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) (quoting 5 U.S.C. §
706(2)(A)). The Court agrees.

Under Chevron U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 844 (1984), courts must defer to
agency regulations as interpretations of their governing statutes
“unless they are arbitrary, capricious, or manifestly contrary to
the statute.” Here, the narrow construction imposed by the
regulation is manifestly contrary to the plain language of the
statute, which provides that any individual whose disqualifying
activity occurred “through no fault of his own or for technical
reasons” shall not be rendered ineligible for adjustment of status.
Nothing in the statute allows for the regulatory interpretation
that only certain individuals who fall into unlawful status through
no fault of their own or for technical reasons may qualify for this
exception.

The Court can find almost no case law interpreting this
provision. However, Mart v. Beebe, CIV. 99-1391, 2001 WL 13624 (D.
Or. Jan. 5, 2001) (unpublished), is instructive. There, the
plaintiff was admitted to the United States as a non-immigrant (B-2
visa), and then applied with her husband for political asylum. She
was “not aware” that she was required to apply to extend her B-2
visa while the asylum application was pending, and therefore fell
out of lawful status. Id. at *2. Her I-485 application was denied
on that basis, and she, along with her family, filed suit in

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federal district court. Judge Jones found that the “lapse of
lawful status” was a “mere technical violation,” and that the
regulation requiring a determination to the contrary

defies Congress’ intent that individuals such as theplaintiffs, who have diligently endeavored to obey the law andhave contributed substantially to the United States . . .
since their arrival, not be precluded from adjustment becausethey were unaware of their duty to keep their non-immigrantvisas current while awaiting the INS’ decision on theirrequest for asylum.

Id at *5.

Similar logic applies in this case. Assuming all Dr.
Alimoradi’s allegations are true, he was not aware that he needed
to file a separate application for employment authorization.
Instead, he relied on Dr. Naeim, who told him that the approved
Labor Condition Application, in combination with an approved I-140
and the pending I-485, would suffice. It is not as if Dr.
Alimoradi failed to apply for any employment authorization; he
simply failed to apply for the right kind.5 As soon as he realized
his error, he filed the appropriate I-765 application. Because he
already had employment approval of some kind, his mistake, like
that at issue in Mart, amounts to a “mere technical violation.”
Essentially, Dr. Alimoradi mixed up the paperwork - not difficult
to do in this maze of statutes and regulations.

The Court further finds that the implementing regulation is
arbitrary and capricious because it fails to provide an exception
for individuals who are crucial to our national interest and
security, and it therefore presents a serious public safety risk.

5 Defendant asserts that Dr. Alimoradi was in fact aware of
the need to file a separate employment authorization application.
When considering a motion to dismiss for failure to state a claim,
however, the Court assumes that Plaintiff’s allegations are true.

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Especially in California, the threat of a massive and destructive
earthquake is a constant. The 1994 Northridge earthquake in
Southern California left 57 people dead and more than 1,500 people
seriously injured, and damaged several major freeways. Days later,
9,000 homes and businesses were without electricity, 20,000 were
without gas, and more than 48,500 had little to no water.6 The
1989 Loma Prieta earthquake in Northern California killed 62,
injured 3,757, left more than 12,000 homeless, destroyed portions
of the Bay Bridge, and caused three billion dollars in damage.7
The 1906 San Francisco earthquake killed hundreds and left nearly
half of the city’s 450,000-person population homeless as miles
“burned and crumbled into a windswept desert of desolation.”8
Experts are seriously concerned about the devastation that a large
earthquake could cause in the near future, and the United States
Geological Survey has recently stressed the need for concerted
efforts “to avoid an earthquake catastrophe” because “[t]he
question is not if but when southern California will be hit by a
major earthquake - one so damaging that it will permanently change
lives and livelihoods in the region.”9

6 See http://www.lafire.com/famous_fires/940117_
NorthridgeEarthquake/quake/01_EQE_exsummary.htm (last accessedAugust 20, 2008).

7 See http://www.sfmuseum.org/alm/quakes3.html (last accessedAugust 20, 2008).

8 See http://www.sfmuseum.org/1906_eq_quests/eq.htm (lastaccessed August 20, 2008).

9 See Suzanne Perry et al, The ShakeOut Earthquake Scenario A
Story that Southern Californians Are Writing, U.S. GeologicalSurvey Circular 1324, Cal. Geological Survey Special Report 207(2008), available at http://pubs.usgs.gov/circ/1324/.

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Dr. Alimoradi is, by all accounts, a talented and innovative
researcher in the area of earthquake science. His work could save
the lives and livelihoods of thousands of Americans in the event of
a serious earthquake. The United States Government has not only
recently warned that we must do everything in our power to prepare
for such a quake, but has specifically certified Dr. Alimoradi as
one of the crucial individuals who will help accomplish this task.
As far as the Court can discern, the United States should be
jumping at the chance to offer Dr. Alimoradi lawful permanent
residency. It would be the very definition of arbitrary and
capricious to hold him ineligible to remain in the United States
because he inadvertently failed to file a second application for
employment authorization even though the approved Labor Condition
Application that he had already obtained was, as far as he knew,
still valid.

The Immigration and Nationality Act leaves ample room for the
Attorney General, in his discretion, to pass regulations that would
forgive minor, technical violations when it is in the interest of
national security or public safety. Instead, USCIS has interpreted
its governing statute in a manner that effectively leaves it
paralyzed. As a result, the agency has allowed itself no
flexibility to act in this country’s best interests. Such a
reading arbitrarily eschews common sense, and creates a fundamental
tension not only with the statute’s plain language, but with its
larger purpose in creating priority worker visas, which, by their
very definition, are designed to make it easier for those skilled
individuals for whom we have a great need to become permanent
residents. See 8 U.S.C. § 1153(b)(1). Congress’s goal of

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encouraging priority workers to stay in the United States is
directly undermined if USCIS refuses to offer these special
individuals relief from innocent mistakes.10

This Court is mindful of the various roles our Constitution
designed for each branch of government. It in no way intends by
this ruling to intrude on the province of the executive branch.
USCIS may draft reasonable regulations that articulate how the “no
fault of his own or technical reasons” exception should be applied,
including how to account for serious public safety or national
security risks. Rather, the Court’s holding is limited to the
conclusion that the regulation as it stands does not work. Under
the circumstances in this case, the regulation as applied to
preclude Dr. Alimoradi - whose work is vital to public safety and
national security - from immigrating to the United States because
of an innocent mistake, is an impermissible construction of its
governing statute, and therefore cannot stand.

b. Applicability of 180-day Bar
Defendant argues that even if Dr. Alimoradi qualifies for the
“no fault of his own or for technical reasons” exception, he is
nevertheless not eligible to adjust his status to that of a lawful
permanent resident because he worked out-of-status for more than
180 days. The Court disagrees with this statutory construction.

10 Dr. Alimoradi provides an excellent example of theconsequences of this impermissibly narrow regulation, but imagineeven more dramatic examples. Under the current regulation, theUnited States would be forced to export, due to minor, noncriminal,
and unintentional immigration violations, the world’s leadingexperts on nuclear physics, biological terrorism, or chemicalwarfare. Such a result is beyond arbitrary and capricious; it isinimical to public safety.

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8 U.S.C. § 1255(c)(2) reads, as relevant here, that “subject
to subsection (k) of this section, an alien . . . 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” is ineligible for adjustment of status. Subsection
(k), of course, provides an exception to ineligibility under
subsection (c)(2); those aliens with extraordinary ability, such as
outstanding researchers or professors, may adjust status even if
they worked unlawfully so long as, inter alia, they did not work
unlawfully for longer than 180 days.

Defendant urges the following construction: Section 1255(c)(2)
proscribes adjustment of status for individuals who work
unlawfully, except for those whose mistake was through no fault of
their own or for technical reasons. However, that exception is
subject to the requirements of subsection (k), and as such is
limited to those individuals whose mistakes lasted less than 180
days.

The Court rejects this construction because it turns
congressional intent on its head by imposing additional
requirements on immigrants with outstanding skills or talents that
are not imposed on individuals with no such ability. “It is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.” Nat’l Ass’n of Home
Builders v. Def. of Wildlife, 127 S. Ct. 2518, 2534 (2007)
(internal quotation marks omitted). Through the plain language of
the Immigration and Nationality Act, it is clear that Congress
intended to grant immigrants such as Dr. Alimoradi special

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treatment in obtaining legal immigrant status by labeling them
“priority workers.” See 8 U.S.C. § 1153(b)(1) ([Employment] “Visas
shall first be made available . . . to qualified immigrants,”
including outstanding professors or researchers (emphasis added)).
This intent is underscored by § 1255(k), which provides for these
individuals with special skills an escape from the sanctions
imposed for certain immigration violations that is not available to
the average individual seeking lawful permanent residency.

The following example well illustrates the backwardness of
Defendant’s argument: Assume that an individual fails to maintain
lawful status because he was ill and physically unable to request
an extension of non-immigrant stay. He would qualify for the “no
fault of his own or technical reasons” exception set forth in §
1255(c)(2), even under the narrow interpretation laid out in the
implementing regulations. See 8 C.F.R. § 1245.1(d)(2)(iii). Now
further assume that because of his illness, the individual was
unable to request an extension of his stay for 220 days. Under
Defendant’s construction, if this individual does not qualify as a
priority worker with outstanding ability under § 1153(b), he can
make use of the exception in § 1255(c)(2) no matter how long he
worked out of status because § 1255(k) does not apply to him.
However, if, like Dr. Alimoradi, he does qualify as a worker with
outstanding talents, he cannot make use of the exception in §
1255(c)(2), even if the circumstances that rendered the individuals
unlawful were identical. In short, under Defendant’s construction,
the statute is less forgiving for special applicants called
“priority workers,” whom Congress has explicitly placed at the
front of the line for obtaining visas, than for a random individual

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with no special skills whatsoever. It is axiomatic that courts
“must avoid [statutory] interpretations that would produce absurd
results,” and Defendant’s argument clearly does just that. Azarte

v. Ashcroft, 394 F.3d 1278, 1288 (9th Cir. 2005).
Instead, the Court finds that, in the context of the entire
statutory framework, § 1255 provides more flexibility for priority
workers than for regular individuals. In context, the thrust of §
1255(c)(2) is that it prohibits adjustment of status for most
people whose legal status has lapsed. The thrust of § 1255(k) is
that it provides a special, unique exemption for priority workers,
so long as they were not out-of-status for more than 180 days.
Thus, § 1255(c)(2) is “subject to” § 1255(k) in that it offers an
extra exemption for priority workers not offered to regular
applicants.

In addition, § 1255(c)(2) provides an exemption for those
individuals whose status lapses through no fault of their own or
for technical reasons. Unlike § 1255(k), this exemption is not
limited to priority workers, and it does not impose a bar on
adjustment of status for those individuals who worked out of status
for more than 180 days, as long as the mistake came about “through
no fault of [their] own or for technical reasons.” In other words,
a priority worker whose status lapses receives an automatic 180-day
grace period. After the 180 days has passed, to obtain relief he
must demonstrate that he falls into the “no fault of his own or for
technical reasons” exception, which provides relief for any
eligible individual.

Accordingly, consistent with congressional intent to provide
priority workers with priority treatment, the Court finds that Dr.

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Alimoradi’s invocation of the “no fault of his own or for technical
reasons” exception is not subject to a 180-day limit that would not
have been imposed on a non-priority worker. Having further
determined that the applicable regulation interprets the “no fault
of his own or for technical reasons” exception in an impermissibly
narrow fashion, the Court concludes that, construing the facts of
this case in the light most favorable to Dr. Alimoradi, he may
invoke this exception because his work is crucial to public safety
and the national security of the United States.

III. CONCLUSION
Based on the foregoing analysis, the motion to dismiss is
DENIED.

IT IS SO ORDERED.

Dated: August 29, 2008


DEAN D. PREGERSON

United States District Judge

17

Ruiz-Diaz v. US - C07-1881RSL - I-360 Religious Worker

United States District Court, W.D. Washington,
at Seattle.
Gabriel RUIZ-DIAZ, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
No. C07-1881RSL.
March 23, 2009.
Robert H. Gibbs, Robert Pauw, Mari Lise Matsumoto, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs.

Lyle D. Jentzer, Melissa Leibman, U.S. Department of Justice, Office of Immigration Lit., Washington, DC, J. Michael Diaz, United States Attorney's Office, Seattle, WA, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

ROBERT S. LASNIK, District Judge.
This matter comes before the Court on plaintiffs' “Motion for Summary Judgment” (Dkt.# 92), defendants' “Cross-Motion for Summary Judgment” (Dkt. # 96), defendants “Motion for Continuance of Plaintiffs' Motion for Summary Judgment and Cross-Motion for Summary Judgment” (Dkt.# 106), and defendants' “Motion to Amend Pleadings to Include Evidence from Depositions (Dkt.# 114). Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:


A. SUBJECT MATTER JURISDICTION PURSUANT TO 8 U.S.C. § 1252(a) (2)(B)(I) and (ii)
Defendants argue that dismissal is appropriate because the Court lacks jurisdiction to review defendants' discretionary determination. This issue has already been resolved in plaintiffs' favor. See Dkt. # 46 at 5.


B. IMMIGRATION AND NATIONALITY ACT (“INA”) CLAIM
The individual plaintiffs allege that they were statutorily eligible to file applications for adjustment of status, but that their applications were rejected in violation of INA § 245(a), 8 U.S .C. § 1255(a). Section 1255(a) provides that:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

Defendants argue that plaintiffs have no statutory right to concurrently file I-360 visa petitions and I-485 applications for adjustment of status and that the Attorney General has the power to promulgated regulations addressing this issue. The challenged regulation, 8 C.F.R. § 245.2(a)(2)(i)(B), permits some aliens to file concurrently while requiring others, including religious workers, to wait until CIS has approved the employer's visa petition before filing their application for adjustment of status.

The Court must determine whether 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's discretion to issue regulations regarding adjustment of status or whether it is contrary to the governing statute. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the first issue is whether Congress has unambiguously expressed its intent regarding the precise questions raised in this case, namely, whether plaintiffs are eligible to apply for adjustment of status and whether they are entitled to concurrent filing. If Congress has clearly spoken, the Court gives effect to “the unambiguously expressed intent of Congress.” Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1303 (9th Cir.2004). Where the statutory language is ambiguous and the intent of Congress is unclear, the Court must determine “whether the regulation enacted by the agency is a permissible construction of the statute. If so, we must defer to the agency's interpretation.” Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir.2005) (internal citation omitted).

Pursuant to 8 U.S.C. § 1255(a)(1), an alien must affirmatively apply for the benefit of adjustment of status: adjustment is not automatic or presumed. Defendants argue that because Congress has not expressly addressed the concurrent filing issue, 8 C.F.R. § 245.2(a)(2)(i)(B) is a valid exercise of the Attorney General's broad discretion to regulate the “timing and procedures aliens must follow when requesting adjustment ....” Opposition (Dkt. # 96) at 7. Plaintiffs do not dispute that the Attorney General has the authority to regulate the manner in which adjustment of status applications are made. The regulation challenged by plaintiffs goes beyond regulating the form of application, the materials to be supplied therewith, or the process of filing, however. Section 245.2(a)(2)(i)(B) prevents, sometimes permanently, otherwise eligible aliens from submitting the application for adjustment of status that is required by 8 U.S.C. § 1255(a)(1). The regulation has been used to affirmatively reject applications for adjustment submitted by members of the plaintiff class. The question before the Court is whether such a regulation is permissible under the statute.

Section 1255(a) applies to aliens who were “inspected and admitted or paroled into the United States ... [or have] an approved petition for classification as a VAWA self-petitioner ....” Congress has clearly determined which aliens are eligible to apply for adjustment of status. Bona, 425 F.3d at 670-71. Where Congress intended to limit the categories of aliens who are eligible for adjustment of status, it did so explicitly in 8 U.S.C. § 1255(c), as further modified by 8 U.S.C. § 1255(i). See Succar v. Ashcroft, 394 F.3d 8, 25 (1st Cir.2005). Plaintiffs maintain, and defendants do not contest, that they are statutorily eligible to apply for adjustment of status. Nevertheless, defendants rejected or prevented the filing of their applications on the ground that they did not meet an additional, unmentioned requirement, namely the possession of approved visa petition. Even if 8 C.F.R. § 245.2(a) (2)(i)(B) can properly be characterized as a timing or procedural regulation, it is not a permissible exercise of the Attorney General's discretion because it conflicts with Congress' unambiguous determination of who is eligible to apply.

Furthermore, the language of 8 C.F.R. § 245.2(a)(2)(i)(B) suggests that it is not a regulation of the application process under § 1255(a)(1), but rather an interpretation of “immediately available” as that phrase is used in § 1255(a)(3). Congress has determined that an alien is eligible for adjustment of status if “an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a)(3). There are at least two possible interpretations of this requirement. First, one could argue that a visa is “immediately available” to an applicant if the Department of State has an immigrant visa number available for distribution on the date the I-485 application is filed. In the alternative, this requirement could mean that the alien must be eligible for immediate assignment of an immigrant visa number, i.e ., that the visa petition filed by the employer on the alien's behalf has already been approved and the government simply needs to process the I-485 application. Based on the record produced by the parties, the Court assumes that either of these interpretations would be a permissible construction of the statutory language.

It appears, however, that defendants declined to choose between the competing interpretations. The challenged regulation either defines “immediately available” differently depending on the classification of the applicant or waives the requirement in certain circumstances. The first tact is unreasonable and the second is contrary to Congress' intent. The effect of 8 C.F.R. § 245.2(a)(2) (i)(B) is to allow certain aliens, such as priority workers under 8 U.S.C. § 1153(b)(1), to file applications for adjustment of status if the State Department still has numbers available and a visa petition has been filed. Religious workers, however, may not apply for adjustment of status until CIS has actually approved the visa petition. Under the regulation, having an “immigration visa immediately available” means two different things depending on the classification of the alien. Because there is no canon of statutory construction that allows the same language in the same statutory provision to have two conflicting meanings, the Court finds that, to the extent “immediately available” is defined in multiple ways, the interpretation set forth in 8 C.F.R. § 245.2(a)(2)(i)(B) is not permissible. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (where deference is appropriate, the question for the court is whether the agency's interpretation “is based on a permissible construction of the statute”) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

In the alternative, one could argue that the Attorney General has determined that approval of a visa petition is necessary to make a visa “immediately available” to an alien beneficiary, but that he waived that requirement for certain non-religious workers through the promulgation of 8 C.F.R. § 245.2(a)(2)(i)(B). The language and syntax of the regulation support this argument. In effect, the Attorney General has interpreted 8 U.S.C. § 1255(a)(3) restrictively and then waived its application to certain classes of aliens. Congress, however, has determined that an immigrant visa must be “immediately available to [the alien] at the time his application is filed.” 8 U.S.C. § 1255(a). The challenged regulation is inconsistent with this statutory requirement to the extent it authorizes defendants to ignore the “immediately available” language for certain categories of applicants. Although the Attorney General is entitled to deference when interpreting ambiguous statutory language, he may not adopt one possible interpretation and then ignore the statutory requirement whenever he sees fit.

For all of the foregoing reasons, the Court finds that 8 C.F.R. § 245.2(a)(2)(i)(B) is an unreasonable and impermissible construction of the governing statute. The Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs' applications for adjustment of status based on the regulation barring religious workers from concurrent filing.

Having found that 8 C.F.R. § 245.2(a)(2)(i)(B) is inconsistent with the governing statute and therefore invalid, there does not appear to be a need for the Court to evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act (“RFRA”).FN2 Plaintiffs' motion for summary judgment (Dkt.# 92) is GRANTED and defendants' cross-motion (Dkt.# 96) is DENIED. Plaintiffs have requested various forms of relief in the proposed order submitted with their motion. Dkt. # 92. Although the directives and injunctions sought are properly focused on avoiding or ameliorating the injuries that arise from enforcement of the invalid regulation, the proposed order is far-reaching. Defendants, whose papers addressed the merits of plaintiffs' claims, have not commented on the propriety of the proposed order.

The parties shall, within twenty days of the date of this Order, conduct a good faith conference regarding the form of order and judgment to be entered in this matter. If agreement can be reached, a joint proposed order and judgment shall be submitted on or before April 17, 2009, for the Court's review. If agreement cannot be reached, each side may simultaneously file and serve a proposed order and judgment, with a supporting memorandum, on that date: opposition memoranda, if any, would be due ten days later.