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Ali Adil Syed v. Evangelia Klapakis

March 1, 2013

ALI ADIL SYED, PLAINTIFF,
v.
EVANGELIA KLAPAKIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I.INTRODUCTION

Before the Court are Cross Motions for Summary Judgment. Plaintiff Ali Adil Syed ("Plaintiff" or "Syed") filed a Motion for Judgment on the Administrative Record pursuant to Federal Rule of Civil Procedure 56.*fn1 (Doc. No. 10.) Defendants Evangelia Klapakis*fn2 ("Klapakis") and the United States of America (collectively "Defendants") filed a Cross Motion for Summary Judgment pursuant to Rule 56. (Doc. No. 12.) The parties filed a Joint Stipulation of Facts. (Doc. No. 11.) The single issue in this matter is whether the United States Citizenship and Immigration Services ("USCIS") erred in denying the Application of Plaintiff to Adjust His Status to Permanent Resident, which would afford him rights that could lead to citizenship. Petitioner is married to a United States citizen and for this and other statutory reasons he is attempting to adjust his status to a permanent resident so that in the future he would become a United States citizen. The USCIS opposes the adjustment because they found he was not eligible for the adjustment.

For reasons that follow, the Court will grant the Cross Motion of Defendants for Summary Judgment and deny the Motion of Plaintiff for Judgment on the Administrative Record.*fn3

II. RELEVANT STATUTE

A. Provisions of the Immigration and Nationality Act

The Immigration and Nationality Act ("INA") allows an alien who "was inspected and admitted or paroled into the United States" to adjust his status to that of an alien admitted for permanent residence, provided that the alien fulfills three requirements: 1) the alien must apply for the benefit of legal permanent residency; 2) the alien must be eligible to receive an immigrant visa and be admissible*fn4 to the United States for permanent residence; and 3) an immigrant visa is immediately available to the alien at the time the application is filed. 8 U.S.C. § 1255(a) (2006). The burden remains at all times on the applicant to prove these elements. 8 U.S.C. § 1361. The INA defines "admission" and "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). The scope of the inspection and authorization process is set forth in 8 C.F.R. § 1235.1.*fn5 Additionally, any immigrant at the time of application for admission who does not possess a valid entry document, such as an unexpired immigrant visa, re-entry permit, or border crossing identification card is deemed inadmissible. 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Despite these conditions for "admission," an applicant may be exempt from the "admission" requirement in Section 1255(a), supra, if the applicant meets the requirements of 8 U.S.C. § 1255(i) (adjustment in status of certain aliens physically present in the United States). Under section B of this statute, an alien may adjust his or her status, despite ineligibility under Section 1255(a), if the applicant establishes that he or she:

. . . is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of --

(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or

(ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and . . .

8 U.S.C. § 1255(i)(B).*fn6 Under subsection (i), a petition for classification under Section 1154 refers to a petition to be classified as an immigrant by means of a family relationship. 8 U.S.C. § 1154. Under subsection (ii), an application for a labor certification refers to an application for a determination by the Secretary of State and Attorney General that: 1) "there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled labor;" and 2) "the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1182(a)(5)(A)(I-II).

B.The Family Unity Program

Another aspect of immigration law is relevant to this case. It is known as the Family Unity Program ("FUP") and is described at length in a decision of the Ninth Circuit:

The Family Unity Program was created to implement certain provisions of the Immigration Act of 1990, Pub. L. No. 101--649, § 301, [104] Stat. 4978 ("IMMACT 90"), which is set out as a note in 8 U.S.C. § 1255a. The regulations governing the FUP are contained in 8 C.F.R. § 236. The FUP permits qualified alien spouses or unmarried children of legalized aliens, who entered the United States before 1988 and have continuously resided in the United States since that time, to apply for the benefits of the program, which include protection from deportation and authorization to work in the United States.

As the name implies, the FUP is designed to help families stay together while the beneficiaries adjust to [legal permanent resident] status. FUP beneficiaries are granted a two-year period of protection from deportation, which the regulation terms "voluntary departure." 8 C.F.R. § 236.15(c). An FUP beneficiary may apply to extend this grant of voluntary departure so long as he remains eligible for the program. 8 C.F.R. § 236.15(e). An FUP beneficiary may also apply to travel outside the United States. 8 C.F.R. § 236.16. Upon return from authorized travel, an FUP beneficiary, provided he remains admissible, is "admitted in the same immigration status as the alien had at the time of departure, and shall be provided the remainder of the voluntary departure period previously granted under the Family Unity Program." Id.

Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1009-10 (9th Cir. 2006).

III.FACTUAL BACKGROUND

On October 6, 1986,*fn7 Plaintiff Ali Adil Syed, a Pakistani citizen, entered the United States illegally without inspection. (Doc. No. 1 ¶ 4.) Since that time, Syed has resided in the United States, and currently resides in Pennsylvania with his wife, Shabman Syed.*fn8 (See id. ¶ 1; Doc. No. 11 ¶ 3.) On April 28, 2004, Shabman Syed filed a Form I-130 Petition for Alien Relative naming Plaintiff as the beneficiary. (Doc. No. 11 ¶3.) Form I-130 is submitted for an alien seeking permanent residence in the United States by virtue of a relationship with a United States citizen. See 1 Immigr. Law and Defense § 4:38. Syed's wife was a lawful permanent resident at the time she filed the I-130 petition, which was approved on November 9, 2005. (Doc. No. 11 ¶ 3.) Over five years later, on August 14, 2009, Plaintiff's wife became a naturalized United States citizen. (Id.) On October 13, 2005, Plaintiff applied for voluntary departure benefits under the FUP. (Doc. No. 1 ¶ 4.) On January 26, 2006, the USCIS approved Syed's application for voluntary departure benefits, and also approved two extensions of voluntary departure benefits through June 2011 and June 2013 respectively. (Doc. No. 1 ¶ 4; Doc. No. 11 ¶ 5-6.)

On September 29, 2009, Plaintiff filed a Form I-485 Application to Register Permanent Residence or Adjust Status with the USCIS, based upon the approved I-130 Petition of his wife, who was now a United States citizen. (Doc. No. 11 ΒΆ 7.) Plaintiff's application sought an adjustment to that of a person admitted for ...


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