Chee Kin Jang v. Reno

113 F.3d 1074, 97 Daily Journal DAR 6141, 97 Cal. Daily Op. Serv. 3603, 1997 U.S. App. LEXIS 10841
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 14, 1997
DocketNo. 96-15593
StatusPublished
Cited by1 cases

This text of 113 F.3d 1074 (Chee Kin Jang v. Reno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chee Kin Jang v. Reno, 113 F.3d 1074, 97 Daily Journal DAR 6141, 97 Cal. Daily Op. Serv. 3603, 1997 U.S. App. LEXIS 10841 (9th Cir. 1997).

Opinion

OPINION

WIGGINS, Circuit Judge:

Plaintiff Chee Kin Jang is a dual national — a native and citizen of the People’s Republic of China (“PRC” or “China”) and a citizen of Belize. On January 22, 1988, he entered the United States from Belize under a C-l visa.1 At the time of entry, he claimed citizenship of Belize and entered under a Belize passport. While in the United States, he unsuccessfully applied for adjustment of status to lawful permanent resident under the Chinese Student Protection Act of 1992 (“CSPA”), Pub.L. No. 102-404,106 Stat.1969, reprinted in 8 U.S.C.A. § 1255 note (West Supp.1997). On this appeal, plaintiff challenges a district court order granting summary judgment in favor of Janet Reno, the Immigration and Naturalization Service, et al. (collectively, “INS”). The district court held that plaintiff does not qualify under the CSPA because his declared nationality upon entry into the United States was that of Belize, so he was not a “PRC national” for purposes of the CSPA. We have jurisdiction under 28 U.S.C. § 1291.2 We AFFIRM.

Following the events in Tiananmen Square in 1989, President Bush issued Executive Order No. 12711 (“EO 12711”). 55 Fed.Reg. 13,897 (1990), reprinted in 11 U.S.C.A § 1101 note (West Supp.1997). This order allowed PRC nationals who were in the United States on or after June 5, 1989 to avoid enforced departure until January 1, 1994. Congress passed the CSPA to resolve the immigration status of those that were covered by EO 12711 before its expiration. On April 11, 1994, the INS rejected plaintiffs application for adjustment of status to permanent resident under the CSPA, noting that he was a dual national who had entered the United States claiming citizenship of Belize, not China.3 The INS concluded that as a result of its dual nationality policy, plaintiff was not a PRC national under the CSPA. For the duration of an alien’s stay, the dual nationality policy treats a national of two foreign states as a national of the state he or she claimed upon entry into the United States. Unable to obtain declaratory and injunctive relief against this policy in district court, plaintiff filed this appeal.

Initially, we reject the INS’s argument that its decision is not reviewable under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The INS contends that, as the Attorney General’s lawful delegate, it has unfettered discretion under 8 U.S.C. § 1184(a) to dictate the conditions of entry of nonimmigrant aliens. In this case, we do have law to apply in reviewing the INS’s decision. We look to the language of the CSPA; specifically, whether the term “all PRC nationals” as used in that statute includes by its plain meaning even those dual PRC nationals who entered under another passport and thus are not treated as PRC nationals under the dual nationality policy. Accordingly, judicial review is proper.

We review a grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209. Our de novo review of the INS’s statutory construction of the CSPA is subject to the two-step Chevron analysis. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Thus, if the statutory language admits only one interpretation, that interpretation must be given effect. Tang v. Reno, 77 F.3d 1194, 1197 (9th Cir.1996). If the language is silent or ambiguous, and if Congress has not expressed any intent on the precise question, then we proceed to step [1077]*1077two: defer to the INS unless its interpretation is arbitrary or capricious. Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 2781-82 & n. 9, 81 L.Ed.2d 694 (1984); Tang, 77 F.3d at 1197. Our review is especially deferential in the context of immigration policy. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477-78, 52 L.Ed.2d 50 (1977).

The CSPA grants eligible applicants significant advantages in qualifying for an adjustment of immigration status under 8 U.S.C. § 1255(a). See CPSA § 2(a). The CSPA covers “national[s] of the People’s Republic of China described in section 1 of Executive Order No. 12711____” CSPA § 2(b)(1). Section 1 of EO 12711 covered “all nationals of the People’s Republic of China (PRC) ... who were in the United States on or after June 5,1989, up to and including the date of this order [April 11, 1990].” Additionally, the CSPA has physical presence requirements not at issue in this case. CSPA § 2(b)(1). The sole issue before us is whether plaintiff is a PRC national within the meaning of the CSPA despite declaring a different nationality when he entered the United States.

Plaintiff argues that we should reverse under step one of Chevron because the INS’s application of the dual nationality policy to the CSPA was contrary to the plain language of the CSPA The CSPA covers “all PRC nationals,” with specific enumerated exceptions. Congress did not expressly exclude dual nationals from the CSPA unlike such categories as drug traffickers and terrorists. See CSPA §§ 2(a)(3)(A) & (B) (detailing which categories for general exclusion of aliens apply and which are waived under the CSPA). Plaintiff contends that because he does not fall within any enumerated exception in the CSPA he must be a “PRC national” under its plain language.

We agree with the district court that Congress did not consider the issue of dual nationals when it passed the CSPA Every category of exclusion in CSPA § 2 corresponds with, and refers to by section number, categories of general exclusion in Immigration and Nationality Act (“INA”) § 212, 8 U.S.C § 1182. The CPSA waived application of some of the general exclusion categories to otherwise qualifying PRC nationals, but retained others. Because dual nationality is not a generally excludable category under 8 U.S.C. § 1182, Congress’s failure to mention it in CSPA § 2 is not indicative of any intent one way or the other. CSPA § 2 does not address the issue of who is a “PRC national” within the meaning of the CSPA; rather it focuses on whether PRC nationals are ex-cludable for other reasons.

Concluding that the statutory language evidenced no specific congressional intent on the precise issue in dispute, we move on to step two of the Chevron analysis. Under 8 U.S.C. § 1184

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113 F.3d 1074, 97 Daily Journal DAR 6141, 97 Cal. Daily Op. Serv. 3603, 1997 U.S. App. LEXIS 10841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chee-kin-jang-v-reno-ca9-1997.