Edwin Rosete Reganit v. Secretary, Department of Homeland Security

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10784
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-20543-CMA
EDWIN ROSETE REGANIT,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
DIRECTOR, US CITIZENSHIP AND IMMIGRATION SERVICES,
DISTRICT DIRECTOR OF THE UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICE MIAMI DISTRICT OFFICE,
Linda Swacina,
KENDALL FIELD OFFICE DIRECTOR, UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES,
Andrew Davidson,
U.S. ATTORNEY GENERAL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 25, 2016)
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Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
Defendants, who are the Department of Homeland Security and related
entities, denied Plaintiff Edwin Rosete Reganit’s application for naturalization.
Plaintiff sought review of this denial in district court, pursuant to 8 U.S.C.
§ 1421(c). 1 The district court granted summary judgment to Defendants. Plaintiff
now appeals, arguing that the district court erred by characterizing him as an alien
crewman, which thereby rendered him statutorily ineligible to become a United
States citizen because it meant that he had not been lawfully admitted for
permanent residence. After careful review, we affirm.
I. BACKGROUND
A. Factual Background
The parties stipulated to the following facts. Plaintiff, a native and citizen of
the Philippines, entered the United States on May 27, 2001, with a C-1/D2 visa to
work on board a ship owned by Discovery Cruise Lines. Plaintiff worked as a
1
Section 1421(c) of Title 8 of the United States Code states that, “A person whose application
for naturalization . . . is denied, after a hearing before an immigration officer . . . may seek
review of such denial before the United States district court for the district in which such person
resides.” 8 U.S.C. § 1421(c).
2
A C-1/D visa is a dual visa. A “C-1” visa is given to a nonimmigrant alien who is in
“immediate and continuous transit through the United States.” 8 U.S.C. § 1101(a)(15)(C). A
“D” visa is given to a nonimmigrant alien serving aboard a vessel or aircraft “who intends to
land temporarily and solely in pursuit of his calling as a crewman and to depart from the United
States with the vessel or aircraft on which he arrived or some other vessel or aircraft.” Id.
§ 1101(a)(15)(D)(i); see also Matter of G-D-M-, 25 I. & N. Dec. 82, 83 (BIA 2009).
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butcher on the ship for approximately two weeks before becoming ill.
Approximately one more week passed, and because Plaintiff was still sick,
Discovery Cruise Lines began the process of arranging for him to de-board the ship
to receive medical assistance in the United States. On June 29, 2001, Plaintiff was
granted a temporary medical parole into the United States, valid only until July 28,
2001, pursuant to 8 U.S.C. § 1182(d)(5).
When Plaintiff de-boarded the ship, employees of Discovery Cruise Lines
escorted him to a doctor in Miami and remained with him at a hotel until he
returned to the ship. After returning to the ship, Plaintiff worked for approximately
one more week. However, because he was still ill, Discovery Cruise Lines once
again arranged for him to see a doctor in Miami. But while in Miami, Plaintiff
resigned from his position on the ship and Discovery Cruise Lines then arranged
his travel back to the Philippines.
Plaintiff, however, did not return to the Philippines, as he should have done.
Instead, he remained in the United States, and later he married his current wife,
Aileen, in 2002. In 2005, Aileen filed an I-130 petition for alien relative on behalf
of Plaintiff and Plaintiff filed an I-485 application for adjustment of status to that
of a lawful permanent resident based on his marriage to a United States citizen.
On his adjustment of status application, Plaintiff stated that his last entry into the
United States was on May 27, 2001, and that his status upon entering was C-1.
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On June 13, 2006, United States Citizenship and Immigration Services
(“CIS”) granted Plaintiff’s application and his status was adjusted to that of a
lawful permanent resident. Upon becoming a lawful permanent resident, Plaintiff
traveled outside of the United States multiple times between 2007 and 2012. He
showed his lawful permanent resident card to immigration authorities each time he
re-entered the United States.
On March 4, 2011, Plaintiff applied to become a United States citizen.
Discovering that Plaintiff had been admitted to the United States as a crewman,
CIS determined that its approval of his adjustment of status application in 2005 had
been in error and that, as a result, Plaintiff was not statutorily eligible to adjust
status to that of a lawful permanent resident. Stated another way, because Plaintiff
could not show that he had been lawfully admitted for permanent residence, he did
not meet all of the requirements necessary to become a naturalized citizen.
Accordingly, CIS denied his application for citizenship and after Plaintiff
appealed, it affirmed its denial of Plaintiff’s application.
B. Procedural History
In February 2014, Plaintiff filed this action pursuant to 8 U.S.C. § 1421(c)
against the Secretary of the Department of Homeland Security; the Acting Director
of the CIS; the District Director of the Miami District of CIS; the Director of the
Kendall Field Office of CIS; and the Attorney General of the United States, in their
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official capacities. In his amended complaint, Plaintiff alleged that Defendants
violated his rights under the Immigration and Nationality Act (“INA”) and the
Administrative Procedures Act by denying his application for naturalization.
Plaintiff later moved for summary judgment. He argued that
notwithstanding his initial entry into the United States as only a crewman, he was
eligible for adjustment of status based on his temporary medical parole into the
United States on June 29, 2001. From that premise, he further contended that he
was thereafter properly granted lawful permanent resident status, meaning that he
met this requirement for becoming a United States citizen. 3 Defendants also
moved for summary judgment, arguing that Plaintiff’s admission to the United
States on a crewmen visa precluded any adjustment of status to that of a lawful
permanent resident, thereby rendering him statutorily ineligible for naturalization.
The district court granted summary judgment in favor of Defendants. The
district court concluded that the plain language of 8 U.S.C. § 1255(c), which bars
alien crewmen from adjusting status, in conjunction with the federal regulation
governing the parole of alien crewmen, 8 C.F.R. § 253.1, mean that Plaintiff’s
temporary medical parole did not alter his status as a crewman. Because Plaintiff
could not establish that he was lawfully admitted for permanent residence based on
3
Alternatively, Plaintiff also argued that even if he was not lawfully admitted for permanent
residence based on his medical parole, he was subsequently admitted for permanent residence
when he later traveled outside of the United State and gained re-entry as a lawful permanent
resident. The district court rejected this argument, and Plaintiff does not challenge this ruling on
appeal.
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this medical parole, he failed to meet the statutory requirements for naturalization.
This appeal followed.
II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary judgment de novo. United
States v. Jean-Baptiste, 395 F.3d 1190, 1192 (11th Cir. 2005). The burden is on
the party moving for summary judgment to establish that no genuine issue of
material fact exists. Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 341–42
(11th Cir. 2012). We view all evidence and draw all reasonable inferences in favor
of the non-moving party. Id.
B. Applicable Law
“American citizenship is a precious right.” Costello v. United States, 365
U.S. 265, 269 (1961). An individual who seeks to obtain naturalized United States
citizenship must comply with the statutory requirements for naturalization. See
Fedorenko v. United States, 449 U.S. 490, 505–06 (1981). These requirements
require, among other things, that the alien show he was lawfully admitted for
permanent residence in the United States. 8 U.S.C. § 1427(a).
The term “lawfully admitted for permanent residence” is defined as “the
status of having been lawfully accorded the privilege of residing permanently in
the United States as an immigrant in accordance with the immigration laws.” 8
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U.S.C. § 1101(a)(20). To be “lawfully admitted for permanent residence,” an
alien’s adjustment to lawful permanent resident status must be “in compliance with
the substantive requirements of the law.” Savoury v. U.S. Att’y Gen., 449 F.3d
1307, 1313–18 (11th Cir. 2006). For that reason, we have held that an alien whose
status was mistakenly adjusted to that of a lawful permanent resident was not an
alien lawfully admitted for that purpose. See id. (concluding that an alien was not
eligible for a waiver of inadmissibility based on a mistaken adjustment of status
done in violation of the substantive requirements of the law).
In order for an alien to adjust status to that of a lawful permanent resident,
the alien must: (1) have been “inspected and admitted or paroled into the United
States”; (2) apply for adjustment of status; (3) be eligible to receive an immigrant
visa and be admissible to the United States; and (4) have an immigrant visa
immediately available to him at the time of filing. 8 U.S.C. § 1255(a).
Alien crewmen, however, are explicitly barred from adjusting to lawful
permanent resident status. Id. § 1255(c). An alien crewman is defined as “a
person serving in any capacity on board a vessel or aircraft.” Id. § 1101(a)(10).
Moreover, the definition of immigrant excludes “an alien crewman serving in good
faith as such in a capacity required for normal operation and service on board a
vessel . . . who intends to land temporarily and solely in pursuit of his calling as a
crewman.” Id. § 1101(a)(15)(D)(i).
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The INA provides that the Attorney General may, in his discretion and on a
case-by-case basis, parole an alien into the United States temporarily for
humanitarian reasons or significant public benefit. 8 U.S.C. § 1182(d)(5)(A).
C. Plaintiff was not Statutorily Eligible for Naturalization
In order for Plaintiff to have been statutorily eligible for naturalization, he
must show that he was lawfully admitted for permanent residence. See 8 U.S.C.
§ 1427(a). But alien crewmen are barred from adjusting to lawful permanent
resident status. 8 U.S.C. §§ 1101(a)(20), 1255(c); see also Savoury, 449 F.3d at
1313–18. And there is no dispute that Plaintiff was an alien crewman on board a
cruise ship who was issued only a crewmen visa for purposes of entry into this
country. There is also no dispute that after his arrival, Plaintiff was granted a
temporary medical parole into the United States under § 1182(d)(5) to obtain
treatment for an illness that had arisen while he was working on the ship.
Consequently, this case turns on a matter of first impression in our Court: whether
Plaintiff’s grant of medical parole under § 1182(d)(5) altered his crewman status.
We conclude that it did not.
We first address Plaintiff’s argument that he shed his “alien crewman” status
under the INA once he became ill on board the ship and was allowed to
temporarily de-board for purposes of receiving medical treatment. Plaintiff
concedes that his initial entry in May 2001 was as a crewman, but he contends that
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by de-boarding temporarily in June 2001 to receive medical treatment, he ceased
“pursuit of his calling as a seaman.” Yet, in determining whether an alien should
be classified as a crewman, we have stated that “the focal issue is whether [the
alien] entered the United States in pursuit of his calling as a seaman.” Parzagonis
v. I.N.S., 747 F.2d 1389, 1390 (11th Cir. 1984). The Board of Immigration
Appeals (“BIA”) has further explained that it “examine[s] an alien’s visa and the
circumstances surrounding his entry into the United States to determine if he
entered as a crewman.” Matter of G-D-M-, 25 I. & N. Dec. 82, 85 (BIA 2009).
For the sake of this discussion, we will assume that a non-crewman alien
who was medically paroled into the United States under § 1182(d)(5)(A) might
later be eligible to adjust status. But the applicable statutes and regulations do not
permit an alien crewman to bypass the statutory bar on his adjustment of status
merely by the fortuity of a subsequent medical parole to treat an illness arising
while serving as a crew member. Section 253.1(e) of Title 8 of the Code of
Federal Regulations governs the parole of alien crewmen. That provision states
that an alien crewman without a conditional landing permit and in need of medical
treatment or observation may be paroled into the United States pursuant to
§ 1182(d)(5). 8 C.F.R. § 253.1(e). But an alien granted such parole is to remain in
the custody of the agent of the vessel, and the vessel is to cover the expenses of the
medical treatment. Id.
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Reading this regulation together with § 1255(c)—which clearly bars alien
crewmen from adjusting to lawful permanent resident status—we conclude that an
alien crewman granted medical parole pursuant to 8 C.F.R. § 253.1(e) does not
cease being a crewman and thereby rid himself of the statutory bar on adjustment
of status. See 8 U.S.C. § 1255(c); 8 C.F.R. § 253.1(e). In fact, the BIA has stated
that Congress intended “to bar all occupational seamen . . . who have relatively
easy access to the United States [and] have used the seaman route to enter the
United States for permanent residence.” Matter of Goncalves, 10 I. & N. Dec. 277,
279 (BIA 1963). Nothing in the applicable statutes imply that an alien crewman
who has been admitted as such, but who subsequently receives a medical parole
while working on board a ship, thereby becomes eligible for adjustment of status.
Indeed, in the present case, it is clear that Plaintiff’s medical parole was
obtained in pursuit of his calling as a seaman. See Parzagonis, 747 F.2d at 1390;
Matter of G-D-M-, 25 I. & N. Dec. at 85. Having received only a crewmen visa,
Plaintiff fell ill while working on board the Discovery Cruise Lines ship.
Consistent with the federal regulation governing the parole of alien crewmen,
Discovery Cruise Lines arranged for Plaintiff’s medical parole and his subsequent
doctor’s visits, and stayed with him at a hotel in Miami. See 8 C.F.R. § 253.1(e).
Notably, Plaintiff did in fact return to the ship after his first doctor’s visit. And
once he decided to quit his position as a crewman, Discovery Cruise Lines
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arranged for Plaintiff’s travel home to the Philippines. In short, Plaintiff’s visa and
the circumstances surrounding his entry into the United States establish that he was
a crewman throughout the applicable period of time.
Plaintiff also argues that the district court erroneously interpreted 8 C.F.R.
§ 253.1(e) to mean that an alien paroled into the United States will remain an alien
crewman forever. The district court, however, did not make such a
pronouncement. Instead, it considered all of the circumstances surrounding
Plaintiff’s entry in 2001 in reaching its conclusion that his entry was in pursuit of
his calling as a seaman. 4 See Matter of G-D-M-, 25 I. & N. Dec. at 85.
We are also not persuaded by Plaintiff’s argument that the policy reasons for
barring alien crewmen from adjustment of status ceased to exist once he was
allowed to seek temporary medical care while serving on board the ship. Given
their “relatively easy access to the United States,” alien crewmen who have been
admitted for the limited purpose of pursuing their occupation are prohibited from
taking advantage of this access to later adjust status. See Matter of Goncalves, 10
I. & N. Dec. at 279; 8 C.F.R. § 253.1(e). Again, Plaintiff was able to obtain a
temporary medical parole, which expired on July 28, 2001, only because he had
first been granted entry as an alien crewman.
4
The BIA has determined that an occupational crewman is not barred from adjustment of status
if the alien’s most recent admission into the United States was not in pursuit of his calling as a
seaman. See Matter of Rebelo, 13 I. & N. Dec. 84, 85–86 (BIA 1968) (concluding that an alien
was not barred from adjustment of status because, although he was occupationally a crewman,
his most recent entry into the United States was as a visitor for pleasure).
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In summary, because Plaintiff was a crewman when he entered this country,
he cannot establish that he was lawfully admitted for permanent residence. See 8
U.S.C. §§ 1101(a)(20), 1255(c). As a result, Plaintiff does not meet the statutory
requirements for naturalization. See 8 U.S.C. § 1427(a). Accordingly, the district
court did not err by granting summary judgment in favor of the Defendants.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district
court.
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