TORRES DE LIMA NETO v. THOMPSON

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NELSON TORRES DE LIMA NETO,

Plaintiff,

v.

Civ. No. 20-00618 (KM) (JBC)

JOHN THOMPSON, District Director

for U.S Citizenship and Immigration OPINION

Services (USCIS) Northeast Region,

and PAULO CORREIA, Field Office

Director of the USCIS-Newark Field

Office,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Nelson Torres de Lima Neto, a non-citizen, applied to the United States

Citizenship and Immigration Services (the “Service”) for adjustment of his

immigration status to a lawful permanent resident. The Service denied his

application based on its interpretation of 8 U.S.C. § 1182(a)(9)(B)(i)(II) (which I

will call “(B)(i)(II)”), a provision that renders certain aliens inadmissible and

thus ineligible for adjustment of status. Neto1 seeks review and vacatur of the

Service’s decision under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706(2), and asks for declaratory relief under the Declaratory Judgment Act,

28 U.S.C. § 2201. The Service moves to dismiss under Federal Rule of Civil

Procedure 12(b)(6) (DE 11), and Neto both opposes and moves for summary

judgment (DE 14).2 For the following reasons, the Service’s motion to dismiss is

DENIED and Neto’s motion for summary judgment is GRANTED.

1 The plaintiff refers to himself as “Neto.”

2 Certain citations to the record are abbreviated as follows:

DE = Docket entry number

Compl. = Complaint (DE 1)

I. BACKGROUND

A. Facts3

Neto, a Brazilian citizen, was lawfully admitted into the United States in

1993 on a tourist visa. (Compl. ¶¶ 11–12.) He overstayed his visa and was

ordered deported in 1994. (Id. ¶¶ 13–14.) However, he did not leave the United

States until 2000. (Id. ¶ 15.)

In 2002, Neto was again admitted to the United States on a tourist visa.

(Id. ¶ 17.) In gaining admission, he allegedly did not disclose that he previously

had been unlawfully present in the United States from 1994 to 2000. (App. 5.)

He has remained in the United States since 2002. (Compl. ¶ 18.)

In 2016, Neto applied to the Service for adjustment of his status to that

of a lawful permanent resident. (Id. ¶ 21.) Title 8, U.S. Code, § 1255 allows

certain aliens to apply to have their status adjusted to lawful permanent

residents. One precondition, however, is that the alien be “admissible to the

United States.” Id. § 1255(a). The Service denied Neto’s application,

determining that he was inadmissible. (Compl. ¶ 22.) He moved to reconsider,

but the Service denied that motion as well. (Id. ¶¶ 23–24.)

In explaining both denials, the Service specified that Neto was

inadmissible under (B)(i)(II), which provides that any alien who “has been

unlawfully present in the United States for one year or more, and who again

seeks admission within 10 years of the date of such alien’s departure or

removal from the United States, is inadmissible.” 8 U.S.C. § 1182(a)(9)(B)(i)(II).

The Service explained that Neto became inadmissible under (B)(i)(II) in 2002,

when he reentered the United States. (App. 3.) The Service further explained to

him that “[t]he fact that the Service did not discover your inadmissibility . . . at

App. = Appendix to Complaint (DE 1-1)

Serv. MTD = The Service’s Motion to Dismiss (DE 11-1)

Pl. Opp. = Neto’s Opposition to the Service’s Motion to Dismiss (DE 14)

Serv. Reply = The Service’s Reply Brief to Neto’s Opposition (DE 15)

3 The facts are not in dispute.

the time of your entry on May 10, 2002 does not preclude the finding of your

inadmissibility at this juncture.” (App. 6.)

B. Procedural History

In this action, Neto seeks judicial review under the APA and asks me to

(1) hold that the Service’s decision was “arbitrary, capricious, . . . or otherwise

not in accordance with law,” 5 U.S.C. § 706(2)(A); (2) issue a declaratory

judgment to that effect, and (3) order the Service to reopen his application for

adjustment of status and adjudicate it accordingly. (Compl., Prayer for Relief.)

The Service has moved to dismiss the complaint for failure to state a claim.

(Serv. MTD.)

In response, Neto filed what was styled as an “Opposition to Defendant’s

Motion to Dismiss and Motion for Summary Judgement for Non-Moving Party.”

Therein, he stated that the merits could be reached based on the Complaint

and administrative record attached thereto, and so he asked the Court to

“recharacterize” the Service’s motion to dismiss as one for summary judgment

or to grant summary judgment in his favor. (Pl. Opp. at 2.) The Service filed a

reply brief that did not take issue with Neto’s procedural requests. (Serv.

Reply.)

II. LEGAL STANDARD

A. Summary Judgment

I will take up Neto’s motion for summary judgment because (1) Neto has

moved for summary judgment on his sole claim, (2) that claim is purely legal,

based on the administrative record, and (3) the Service has not opposed Neto’s

request for summary-judgment treatment. “When a party seeks review of

agency action under the APA, the district judge sits as an appellate tribunal.

The entire case on review is a question of law.” Am. Biosci., Inc. v. Thompson,

269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks and citation

omitted). This is especially true when, as here, the “complaint, properly read,

actually presents no factual allegations, but rather only arguments about the

legal conclusion to be drawn about the agency action.” Rempfer v. Sharfstein,

583 F.3d 860, 865 (D.C. Cir. 2009) (citation omitted). In such a case, “[a] court

can fully resolve any purely legal question on a motion to dismiss, there is no

inherent barrier to reaching the merits at the 12(b)(6) stage,” and “there is no

real distinction in this context between the question presented on a 12(b)(6)

motion and a motion for summary judgment.” Marshall Cnty. Health Care Auth.

v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); cf. 5 U.S.C. § 706(2) (“To the

extent necessary to decision and when presented, the reviewing court shall

decide all relevant questions of law . . . .”). Accordingly, “[s]ummary judgment

is the proper mechanism for deciding, as a matter of law, whether an agency

action is supported by the administrative record and consistent with the APA

standard of review.” Tomasi v. Township of Long Beach, 364 F. Supp. 3d 376,

389 (D.N.J. 2019) (citation omitted), aff’d, 796 F. App’x 766 (3d Cir. 2020).4

Moreover, taking up Neto’s motion for summary judgment complies with

the Rules. A party can move for summary judgment “at any time until 30 days

after the close of all discovery,” Fed. R. Civ. P. 56(b), so there is no issue with

deciding summary judgment now. Further, because Neto has explicitly moved

for summary judgment on the only claim in this case, this is not a case in

which the court’s sua sponte action could deny a party a fair opportunity to

respond. See generally Wolfington v. Reconstructive Orthopaedic Assocs. II PC,

935 F.3d 187, 195–96 (3d Cir. 2019). Indeed, the Service was given notice of

Neto’s motion and an opportunity to respond, yet did not voice any opposition

in its Reply.

4 The Third Circuit has not squarely addressed the principle that an APA case

can be resolved on summary judgment even when the motion is presented as one to

dismiss. But its disposition of APA cases suggests that it is receptive to the approach

outlined by the D.C. Circuit. See Comite De Apoyo A Los Trabajadores Agricolas v.

Perez, 774 F.3d 173, 187 (3d Cir. 2014) (reversing district court’s dismissal of APA

claim, vacating the agency action in the first instance, and directing that judgment be

entered for plaintiffs); Byrne v. U.S. Dep’t of Homeland Sec., 618 F. App’x 143, 145 (3d

Cir. 2015) (affirming in APA case where defendants filed a motion to dismiss or, in the

alternative, for summary judgment, and plaintiffs filed what they denominated a

cross-motion for summary judgment, and district court granted summary judgment in

defendants’ favor).

Turning to the standard of review, summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“While summary judgment is the proper mechanism” for APA cases like this

one, “the usual summary judgment standard does not apply” in the sense that

“the district court does not need to determine whether there are disputed facts

to resolve at trial” since “the administrative agency is the finder of fact.” Soccer

Ctrs., LLC v. Zuchowski, Civ. No. 17-1024, 2017 WL 4570290, at *4 (D.N.J. Oct.

13, 2017) (citations omitted). Instead, my task is to review the administrative

record and determine whether, as a matter of law, the Service’s action complied

with the APA. Id. at *4–5.

B. APA

“The APA ‘sets forth the procedures by which federal agencies are

accountable to the public and their actions subject to review by the courts.’”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905

(2020) (quoting Franklin v. Massachusetts, 505 U.S. 788, 796 (1992)). The APA

empowers courts to review agency actions for whether they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). In doing so, courts only review the grounds invoked by the

agency when it made its decision. Regents, 140 S. Ct. at 1907.

“In some [APA] cases, an agency is alleged to have acted contrary to a

statutory command or prohibition . . . . In other APA cases, by contrast, the

agency is acknowledged to have discretion under the relevant statute, but is

alleged to have exercised that discretion in an arbitrary and capricious (that is,

unreasonable) manner.” Multicultural Media, Telecom & Internet Council v. FCC,

873 F.3d 932, 934 (D.C. Cir. 2017) (Kavanaugh, J.) (internal citations omitted).

Although the Complaint and Opposition make passing references to arbitrary-

and-capricious review, this case falls within the first category of APA cases, as

Neto claims that the Service’s denial of his application was contrary to, and

based on an incorrect interpretation of, (B)(i)(II).

In APA cases, a court is often called upon to apply the “Chevron

framework” and determine (1) whether the statute is ambiguous regarding the

question at issue, and if so, (2) whether the agency’s interpretation is

reasonable. Chevron, USA, Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43

(1984). However, the Third Circuit has forgone the Chevron framework when an

agency is not exercising rulemaking power delegated by Congress or employing

its “expertise in the formulation of substantive policy.” Sandoval v. Reno, 166

F.3d 225, 239 (3d Cir. 1999); see also Da Silva v. Att’y Gen. U.S., 948 F.3d 629,

634–65 (3d Cir. 2020). Likewise, the Supreme Court has forgone Chevron

analysis when the case presents a narrow question of statutory interpretation

which the courts are equipped to decide, as opposed to cases in which the

agency is filling a gap left by the statute. See INS v. Cardoza-Fonesca, 480 U.S.

421, 446–48 (1987). As the parties agree, this case presents “a pure question of

statutory construction for the court[] to decide,” so Chevron is inapplicable. Id.

at 446. Moreover, the Service’s interpretation comes in a letter denying an

application, so it is not the type of fully researched and reasoned decision that

is entitled to any deference beyond its power to persuade. See, e.g., Perez v.

Cuccinelli, 949 F.3d 865, 877 (4th Cir. 2020) (en banc) (Service decision in

letter not entitled to deference); Kaufman v. Nielsen, 896 F.3d 475, 484–85

(D.C. Cir. 2018) (same); Khalil v. Hazuda, 833 F.3d 463, 469 (5th Cir. 2016)

(same).5 Accordingly, my task is to apply ordinary tools of statutory

interpretation to determine whether the Service’s interpretation and application

of (B)(i)(II) is legally correct. See Da Silva, 948 F.3d at 634–65.

5 The Service does not claim that its interpretation is entitled to deference.

Because I find that the Chevron framework does not apply here, I need not address the

thorny question of whether an agency can waive or forfeit deference. See generally

Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 21–22 (D.C.

Cir. 2019) (per curiam). I would note that ultimately Chevron step one and a

straightforward statutory interpretation analysis would converge, in that both seek to

determine the plain meaning, if any, of the statute. See Sandoval, 166 F.3d at 240.

III. DISCUSSION

In Section III.A, I discuss the interpretation of (B)(i)(II). Because I find

that the Service’s decision is not consistent with (B)(i)(II), in Section III.B, I

discuss the appropriate remedy.

A. Interpreting (B)(i)(II)

1. The interpretive problem

(B)(i)(II) provides that any alien who “has been unlawfully present in the

United States for one year or more, and who again seeks admission within 10

years of the date of such alien’s departure or removal from the United States, is

inadmissible.” 8 U.S.C. § 1182(a)(9)(B)(i)(II).

Four pertinent scenarios suggest themselves. Each assumes an alien

who was unlawfully present in the United States for one year or more, and then

departed or was removed.

The first, which I will call Scenario A, is obvious and straightforward.

Alien A seeks admission to the United States in year 5, i.e., 5 years after her

departure. Because the 10-year waiting period has not elapsed, Alien A is

“inadmissible,” and her application is denied under (B)(i)(II).

The second, Scenario B, is equally clear. Alien B seeks admission to the

United States in year 11, i.e., 11 years after his departure. Because the 10-year

waiting period has elapsed, he is not “inadmissible” under (B)(i)(II). His

application is not barred by (B)(i)(II) and may be granted if he meets all other

requirements.

These first two scenarios closely track the statutory classification. But

now consider Scenarios C and D.

Alien C, like Alien A, seeks admission to the United States in year 5.

Because the 10-year waiting period has not elapsed, she is “inadmissible,” and

her application is denied. So, like Alien B, she applies for admission to the

United States in year 11. Her situation is like that of Alien B in every respect

except one: during the 10-year waiting period, she filed an unsuccessful

application for admission. So she should be treated like Alien B, unless the

filing of the application within the 10-year period is a disqualification—i.e.,

unless the “inadmissible” status attached when she applied in year 5, and is

permanent.

Alien D, like Alien A, seeks admission to the United States in year 5. The

10-year waiting period has not yet elapsed, so she is “inadmissible.”

Nevertheless, Alien D is granted admission (perhaps by mistake, or because

she failed to disclose the facts rendering her inadmissible). In year 11, she

seeks an adjustment of status, which depends on her being currently

“admissible.” (In this sense, it is the functional equivalent of seeking

admission.)6 As in the case of Alien C, the issue boils down to whether Alien

D’s (B)(i)(II) “inadmissible” status, though unrecognized in year 5, nevertheless

attached and persists beyond year 10.

The interpretive problem, as I see it, arises from the statute’s unspoken

premises. (B)(i)(II) seems to contemplate Scenarios A and B, and it seems to

assume a single application for admission that is correctly decided. It draws a

line between applications for admission filed within 10 years of departure, and

those filed later. It does not explain what it means, however, to say that the

alien who applies within the 10-year period is “inadmissible.” Of course it

means that a too-early application should be denied. But does it also mean

that once the too-early application is denied, the alien is then forever

inadmissible? And what is to be done with an alien whose application is not

denied, but who is erroneously admitted despite being notionally inadmissible?

Neto stands in the shoes of Alien D. He was unlawfully present for one

year or more when he overstayed his visa from 1994–2000. (Serv. MTD at 7; Pl.

Opp. at 5.) He then departed from the United States in 2000—but did not stay

“departed.” Well within 10 years of that departure, in 2002, he sought

admission. Thus, under the plain terms of the statute, Neto was “inadmissible”

6 “Seeks admission” means both applying for admission at the border, as Neto

did in 2000, and applying for adjustment of status from within the United States, as

Neto did in 2016. Matter of Rodarte-Roman, 23 I.&N. Dec. 905, 908 (BIA 2006).

when he sought admission in 2002, because the 10-year waiting period had

not elapsed. What creates the interpretive issue in this case is that Neto was

nevertheless admitted in 2002, and has apparently been in the United States

since then. The question is whether he is “inadmissible” now.

In 2016—16 years after his departure, and 14 years after his

readmission—Neto applied for an adjustment of status, which requires that he

be “admissible.” He urges that a plain reading of (B)(i)(II) establishes that its

bar is inapplicable: He departed in 2000, more than 10 years elapsed, and he

applied for adjustment of status in 2016. The Service acknowledges, as it must,

that his application in 2016 was not filed “within 10 years of the date of [his]

departure,” 2000. Nonetheless, the Service reasoned that, although actually

admitted in 2002, he was nevertheless “inadmissible” in 2002 as a result of

(B)(i)(II), and that his inadmissible status never changed thereafter. (See App.

6.)

One more point must be clarified. (B)(i)(II) has a limited function. It is not

a complete statement of grounds for grant or denial of admission. Rather, it

permits the Service to dispose of certain cases in a summary manner. It

imposes a 10-year categorical bar to admission, irrespective of the application’s

other merits, or lack thereof. So during the 10-year waiting period, the

application will be denied. After the expiration of the 10-year period, however,

the alien may be, will not necessarily be, admitted. The categorical bar of

(B)(i)(II) no longer applies, but any and all other grounds for exclusion may bar

admission. That Alien D (or Neto) misrepresented her status in year 5, for

example, may have adverse consequences, but that is a separate issue.

It is true that, in Scenarios C and D, the statutory bar may play out in

an unexpected fashion. It is not uncommon, however, for a statutory category

to be an imperfect proxy for the evil which Congress intended to reach. Based

on (B)(i)(II)’s (1) words, (2) place in the statutory context, (3) purpose, and

(4) interpretation by its implementing agency and the Third Circuit, I hold that

an alien is inadmissible only during the 10-year period following his or her

departure. Accordingly, the Service’s position that Neto was inadmissible in

2016 because he sought (and obtained) admission in 2002 is an unwarranted

extension of (B)(i)(II). That is not to say that he must be granted admission, but

if he is inadmissible, it is not because he is subject to the categorical bar of

(B)(i)(II).

Text

My starting point, of course, is the language of (B)(i)(II). Khan v. Att’y

Gen. U.S., 979 F.3d 193, 197 (3d Cir. 2020). Words derive meaning from

surrounding words, and courts avoid giving words any broader meaning than

their context can bear. See Giovanni v. U.S. Dep’t of Navy, 906 F.3d 94, 106 (3d

Cir. 2018). Here, the phrases “seeks admission” and “is inadmissible” are both

expressed in the present tense. Because of this parallelism, the most natural

reading of (B)(i)(II) is that an alien is inadmissible when the alien seeks

admission within the 10-year period—i.e., that an application for admission at

that time must be denied. To understand inadmissibility under (B)(i)(II) as

stretching beyond the 10-year period would strain the context of the words,

which address a specific, temporally limited situation.7

Time and tense are not the same thing. The phrase “is inadmissible” does

not refer to the literal present, i.e., the moment that the reader is perusing the

statute. Nor does it refer to the time that the drafter wrote it. It is the statutory

“present,” in the sense of the time at which the described event takes place and

is permitted, prohibited, or otherwise affected by the statute.8 The thought

7 The alternative interpretation requires us to read the statute to impose

inadmissibility not temporarily, for a specified 10-year period, but permanently, for a

certain class of people consisting of those who dared to apply for admission before that

10-year period had elapsed. The application before 10 years have elapsed would thus

become, not just grounds for denial, but a brand of permanent disqualification. If that

were the statute’s drastic intent, we would expect a far clearer statement.

8 In that sense, it has been written (we might say “it is written”) that a statute is

“always speaking.” See Goldfarb, Neal. (2013). “Always speaking”? Interpreting the

present tense in statutes. Canadian Journal of Linguistics/Revue canadienne de

linguistique. 58. 63-83. 10.1017/S0008413100002528. Linguistically, this quickly

gets us into deep water. What I am describing, however, is not highly specialized, but

a matter of familiar usage.

might be more clearly expressed as “is inadmissible during that 10-year

period.” But (B)(i)(II) is clear enough. Because it is patently concerned with

declaring certain persons inadmissible during that 10-year period, but not

thereafter, it makes sense to read “is inadmissible” to require denial of

applications for admission within that 10-year period only.9

The meaning of (B)(i)(II) becomes clearer by comparison with related

constructions in the statute. “[W]ord choice matters,” and “Congress knows

how to say such things when it wants to,” United States v. Hodge, 948 F.3d

160, 163 (3d Cir. 2020), a comparative principle that applies a fortiori when

applied within the same statute, Riccio v. Sentry Credit, Inc., 954 F.3d 582,

587–88 (3d Cir. 2020) (en banc). Here, Congress used language of permanency

in other parts of § 1182(a), language that easily could have been transplanted

to (B)(i)(II) to accomplish the same result, if that had been intended. For

example, any alien who “has engaged in terrorist activity,” § 1182(a)(3)(B)(i)(I),

or “has engaged in the recruitment or use of child soldiers,” § 1182(a)(3)(G), is

inadmissible—by implication, forever. By using the past tense, Congress has

indicated that any former terrorist activity or use of child soldiers renders an

alien inadmissible thereafter. The present tense, used in (B)(i)(II), does not carry

the same connotation. The past always remains the past; not so, the present.

Relatedly, Congress demonstrated that it knows how to bar aliens

comprehensively by the simple expedient of employing both the past and

present tense. Elsewhere, the statute provides that any alien who “is coming to

the United States . . . to engage in prostitution, or has engaged in prostitution”

is inadmissible. § 1182(2)(D)(i). The upshot of these provisions is that Congress

knows how to impose inadmissibility on a perpetual basis, based on something

the alien has done.

9 For those who would consult legislative history, the Conference Committee

Report for the legislation that would become (B)(i)(II) states that “[a]n alien unlawfully

present for 1 year or more who voluntarily departs is barred from admission for 10

years.” H.R. Rep. No. 104-828, at 207 (1996) (Conf. Rep.). Thus, this Report tends to

confirm that the admission bar operates only for ten years.

Congress did not do that in (B)(i)(II). Rather, Congress used the present

tense (“seeks admission”) when describing the act that renders an alien

inadmissible, and it specified a time frame. Differing verb tenses within one

statute are significant. See Khan, 979 F.3d at 198 (“Congress’s use of different

verb tenses in each of the clauses . . . reflects its intent for the two clauses to

define separate requirements.”). The use of only the present tense, in contrast

to tenses used elsewhere, reinforces the notion that an alien is inadmissible

under (B)(i)(II) at that time—i.e., when seeking admission within the 10-year

period. If Congress wanted to say that the past act of having sought admission

within the 10-year period renders an alien inadmissible forever after, as the

Service would have it, Congress could have said “seeks admission or has

sought admission.” Because Congress did not do that, and because reading

inadmissibility in conjunction with the present tense of “seeks admission” is

more natural, I reject the Service’s reading of the statute’s text.10

The text of the statute, then, most naturally reads as a categorical bar to

admissibility which applies for 10 years after the alien departed, but not

thereafter. As to comings, goings, or other events during that 10-year period,

the statute is silent.

Context

I next consider the broader statutory context in which (B)(i)(II) appears,

for “[s]tatutory context can suggest the natural reading of a provision that in

isolation might yield contestable interpretations.” Monzon v. De La Roca, 910

F.3d 92, 102 (3d Cir. 2018) (citation omitted). The section containing

subparagraph (B)(i)(II) comprises a gradated scheme, in which (B)(i)(II) occupies

an intermediate position, short of the lifetime ban for more serious violators of

the immigration laws which is contained in the following subparagraph (C).

10 The only court to have faced a similar issue reads the statute as Neto does here.

See Kanai v. U.S. Dep’t of Homeland Sec., No. 2:20-cv-05345-CBM-(KSx), 2020 WL

6162805, at *2 (C.D. Cal. Aug. 20, 2020). Kanai is discussed in section III.A.5, infra.

The subparagraph at issue, (B)(i)(II), is part of 8 U.S.C. § 1182(a). The

numbered subsections of Section 1182(a) describe classes of aliens who are

“inadmissible” and thus “ineligible to receive visas and ineligible to be

admitted.” One such class, described in subsection (a)(9), consists of “aliens

previously removed” from the United States.

Subsection (a)(9) in turn is divided into subparagraphs. One of those is

subparagraph (B), the one at issue here, titled “Aliens unlawfully present.”

Another, subparagraph (C), applies to “Aliens unlawfully present after previous

immigration violations.” (Emphasis added.) It stands to reason that the

subparagraph (C) class might merits harsher treatment than the subparagraph

(B) class, and a decision of the Board of Immigration Appeals (“BIA”) lends

support to that view. Matter of Rodarte-Roman, 23 I.&N. Dec. 905, 909 (BIA

2006). As described in Rodarte-Roman, subsection (a)(9)’s subparagraphs

proceed stepwise in order of severity; they “seek to compound the adverse

consequences of immigration violations by making it more difficult for

individuals who have left the United States after committing such violations to

be lawfully readmitted thereafter.” Id.11

Accordingly, Subparagraph (B) “provides for the temporary

inadmissibility of aliens who have been unlawfully present in the United States

for certain continuous periods and who are seeking admission after having

departed,” while subparagraph (C) “provides for the permanent inadmissibility

11 The relevant portions of subparagraphs (B) and (C) are phrased similarly. The

chief distinction lies in the applicability of the 10-year waiting period to persons

illegally within the United States for more than one year. Subparagraph (B) provides

that a person who seeks readmission within 10 years after departure or removal “is

inadmissible.” Subparagraph (C) provides that such a person “who enters or attempt

to reenter the United States without being admitted is inadmissible,” without

specifying a waiting period. Because no time limit is specified, the implication would

be that such a person is inadmissible whenever he or she enters or attempts to enter

the United States. Later in subparagraph (C), there is a narrow exception for an alien

seeking readmission more than 10 years after departure, if the Secretary has

consented to the alien’s reapplication for admission. 8 U.S.C. § 1182(a)(9)(C)(ii). The

implication appears to be that the exception is available only to an alien applying for

admission, after 10 years, with the Secretary’s advance permission.

of any alien who enters or attempts to reenter the United States without being

admitted after a prior removal.” Id. (emphasis added).

“[A]liens inadmissible under [subparagraph (C)] who attempt to enter or

reenter without being admitted may be more culpable than those under

[subparagraph (B)] who are seeking admission.” Cheruku v. Att’y Gen. U.S., 662

F.3d 198, 207 (3d Cir. 2011). Thus, it is subparagraph (C) which imposes the

most severe consequence, permanent inadmissibility, on the most culpable

violators. To read (B)(i)(II) as imposing the same punishment as subparagraph

(C) would not be consistent with the expressed views of Congress that aliens

qualifying for subparagraph (B) are a step below aliens qualifying for

subparagraph (C) in culpability.

In sum, I find that the Service’s current interpretation is in considerable

tension with that statutory scheme. Generally speaking, subparagraph (C)

imposes permanent inadmissibility on past violators of the immigration laws;

subparagraph (B) imposes the lesser sanction of inadmissibility for 10 years on

less culpable persons. The Service’s position—in effect, “once inadmissible,

always inadmissible”— would render Neto permanently inadmissible under the

nominally more lenient subparagraph (B). In the context of subsection (a)(9)’s

gradated scheme, a lifetime ban for those who fall under subparagraph (B)

would be anomalous.

Purpose

I next consider whether my interpretation is consistent with the statute’s

purpose, or would produce absurd results. Vooys v. Bentley, 901 F.3d 172, 192

(3d Cir. 2018) (en banc). Most generally, “the provisions of § 1182(a)(9),

including the ten-year bar, were intended to deter aliens who had accrued

unlawful presence and then left the United States from later seeking

admission.” Cheruku, 662 F.3d at 207. “It is recidivism, and not mere unlawful

presence, that section [(a)(9)] is designed to prevent.” Rodarte-Roman, 23 I.&N.

Dec. at 909.

Setting aside the particulars of Neto’s case for a moment, the Service’s

position does not very clearly further the statute’s purpose. Now there are clear

cases; I refer to Scenarios A and B. (See Section III.A.1, pp. 7–8, supra.) These

bespeak a statutory purpose to withhold admissibility on a categorical basis for

10 years after departure, but permit it thereafter. What (B)(i)(II) does not do,

however, is impose a permanent ban on anybody.

The statute can be extended to Scenarios C and D only by distorting its

text and attempting to implement some more general sense of its purpose. (See

Section III.A.1, pp. 7–8, supra.) Such an approach, I believe, exceeds the

bounds of prudent statutory construction. Consider Alien C, for example, who

departed at the beginning of year 1, unsuccessfully sought admission in year 5,

waited, and reapplied for admission in year 11. It does not advance the

statute’s purpose—understood as a 10-year bar or waiting period—to continue

to bar Alien C from admission in year 11. Alien D differs from C in that her

application for admission in year 5 was successful, before she went on to apply

to adjust her status in year 11. Her status-adjustment application still

conforms to the words of the statute, however, in that it occurs more than 10

years after she departed. What makes us uneasy is that she should not have

been admitted in year 5—but that is a separate problem. We cannot fix that

separate problem by grafting onto (B)(i)(II) a judicially-created doctrine that,

where the application is wrongly granted, as opposed to denied, the alien’s

inadmissible status should be deemed permanent. On that view, (B)(i)(II) would

operate as a punishment with permanent effects, rather than as a time-limited

deterrent. That is inconsistent with both its wording and its evident purpose.

See Aguilar-Enriquez v. Holder, 492 F. App’x 511, 517–18 (6th Cir. 2012)

(“[(B)(i)(II)] only punishes an alien by barring that alien from applying for

adjustment of status for 10 years.”). Applying (B)(i)(II)’s bar only during the ten-

year period is consistent with the statute’s purpose in most if not all instances,

and a few awkward in-between cases (perhaps remediable by other means)

should not be used as a basis to distort its interpretation.

I will consider in addition whether my interpretation of the statute leads

to an absurd result in this case, i.e., one that casts doubt on that

interpretation’s correctness. Mr. Neto, an alien, sought admission during the

10-year period, in 2002 (two years after his departure). But instead of being

deemed inadmissible, as the statute contemplates, he was admitted.12 What

should have happened was denial of admission.

Still, some level of illegal presence is a given; far from being an automatic

or permanent disqualification, it is the very premise for application of (a)(9)

itself, and (B)(i)(II) in particular. Mr. Neto waited for 16 years after his 2000

departure to apply for adjustment of his status to a lawful permanent resident.

Although that period well exceeds the 10-year statutory waiting period, he

spent most of that period inside, not outside, the country, as a result of the

erroneous grant of his application to be admitted in 2002.

Now admittedly, this specific situation may not have been addressed by

the statute’s drafters. Applying the statute literally to this situation may even

be bad policy. If so, the legislature, not the court, should fix it. “To depart from

a statute’s plain meaning today, the text must dictate a result so unreasonable

that it amounts to an absurdity.” Riccio, 954 F.3d at 588 n.2. That is a “high

bar,” as “[v]irtually all laws would be absurd if judged by whether they

accomplish a perfect solution to an underlying legislative concern.” Id. at 589

(citation omitted). The text, context, and purpose of (B)(i)(II) all indicate that its

bar on admission applies only to the 10-year period. Applying (B)(i)(II)’s plain

meaning to the facts here may reveal a statutory blind spot where an alien is

accidentally admitted. Yet a gap in the statute is not the same thing as an

absurdity. See In re Visteon Corp., 612 F.3d 210, 234 (3d Cir. 2010) (“That [the

statute] is a partial solution to congressional concerns in no way converts it

into an absurdity.”). Indeed, applying the Service’s interpretation to avoid this

12 Because, according to the Service, he failed to reveal his prior unlawful

presence and order of deportation, and the Service apparently failed to detect it on

their own.

blind spot would thwart the statute’s text and purpose. At bottom, (B)(i)(II) is a

“specific bar[] to admissibility” under limited circumstances. Cheruku, 662 F.3d

at 207 (emphasis added). That it does not capture the particular situation here

does not evince any absurdity—only the reality that, like many statutes, its

plain meaning is incapable of addressing every situation. See Visteon, 612 F.3d

at 234.

To the extent Mr. Neto’s case is anomalous, the anomaly is not so much

a product of some absurdity in the statute as it is a product of a mistaken

decision to admit him in 2002. Either because (1) Neto did not disclose his

prior unlawful presence, or (2) the Government, at the time of his admission,

did not catch his prior unlawful presence (or both), Neto was admitted. (B)(i)(II)

does not contemplate this situation because it assumes that, when an alien

“seeks admission” in the 10-year period, he will be properly denied admission.

The result of interpreting the statute in Neto’s favor produces a result that may

be unanticipated, but is not absurd, and it does not bespeak a legislative

failure to guard against an obviously absurd result. A court cannot rewrite a

statute merely because the legislative means are not a perfect fit for the

legislative ends.

Interpretation by other tribunals

I consider whether binding case law of the Court of Appeals dictates a

result. It does not, but it does suggest that a literal approach to the statute’s

10-year bar is the correct one.

To the limited extent it has interpreted (B)(i)(II), the Third Circuit has

treated it straightforwardly, as creating a 10-year period of inadmissibility,

running from the alien’s departure. Construing (B)(i)(II) in relation to a question

not presented here, the Third Circuit explained that the statute creates a “ten-

year bar” and provides that “an alien with a one-year period of unlawful

presence in the U.S. would not be eligible for consular admission and

inspection at all during the applicable bar period without a waiver of

inadmissibility.” Cheruku, 662 F.3d at 207 (emphasis added). Therefore, the

Third Circuit, albeit in passing, indicated that (B)(i)(II) bars admission only

“during the applicable bar period,” ten years from a date of departure.

I also consider how the BIA’s constructions of (B)(i)(II) illuminate the

statute. See County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1474

(2020) (in interpreting a statute that an agency administers, courts consider

the agency’s views and prior application, even when Chevron is inapplicable).13

In one case, Rodarte-Roman, the BIA, much like the Third Circuit,

expressed a general sense that (B)(i)(II) does no more than impose a 10-year

ineligibility period. There, the BIA addressed whether, under (B)(i)(II), the entire

one year of unlawful presence must precede the departure. 23 I.&.N. Dec. at

908. The BIA held that it must: “an alien’s departure from the United States

triggers the 10-year inadmissibility period specified in [(B)(i)(II)] only if that

departure was preceded by a period of unlawful presence of at least 1 year.” Id.

at 909. In construing (B)(i)(II), the BIA reasoned that (B)(i)(II) is intended to

create a “temporary” period of inadmissibility and so operates in a literal way:

first, an alien accrues one year of unlawful presence, then he departs, and then

he seeks admission within 10 years. At the time he seeks admission, he is

inadmissible. Id. The words of the statute are read literally, even if the tribunal

thinks it would make just as much sense to apply the statute to aliens who left

before accruing a year of unlawful presence: “Congress made departure . . . the

event that triggers inadmissibility.” Id.; see also id. at 910.

Rodarte-Roman thus evinces an understanding by the BIA that (B)(i)(II)

creates a temporary bar of inadmissibility, running 10 years from the date of

departure (preceded by one year of unlawful presence). The BIA’s approach in

Rodarte-Roman stresses a literal reading of (B)(i)(II): a straightforward timeline

of unlawful presence, departure, and inadmissibility for 10 years.

13 The BIA’s interpretations of the immigration statutes are entitled to deference

when they come in a precedential decision. Cheruku, 662 F.3d at 202. The parties do

not dispute that Rodarte-Roman is entitled to due consideration.

The only tribunal to have faced facts like Neto’s, in the context of a very

closely allied legal issue, read the statute much as Neto does here. In Kanai v.

U.S. Department of Homeland Security, the plaintiff-alien entered the U.S. in

1996 on a visa, overstayed that visa, departed in 2003, entered the U.S. again

in 2005 on a visa, overstayed that visa, and applied to adjust her status some

17 years after her departure, in 2020. No. 2:20-cv-05345-CBM-(KSx), 2020 WL

6162805, at *2 (C.D. Cal. Aug. 20, 2020); DE 24, at 1.The Service denied her

application, reasoning that, although her period of inadmissibility began to run

from 2003 (her departure), that period was tolled by her “substantively

unlawful” admission in 2005 and subsequent unlawful presence in the

country. DE 24, at 2. The court rejected the argument that (B)(i)(II)

contemplates tolling of the 10-year period based on an intervening, unlawful

readmission to the United States. 2020 WL 6162805, at *3. Rather, the court

reasoned, the plain language of the statute entailed that the plaintiff was

inadmissible for 10 years following 2003; because she applied for adjustment of

status in 2020, well after that period expired, she was not subject to the

(B)(i)(II) bar.

Kanai confirms my own plain-text reading of (B)(i)(II). The statute simply

does not contemplate or address an alien’s readmission following “departure”

or provide that readmission affects the 10-year ineligibility period.14

14 Instead of arguing that Neto’s 2002 admission tolled the period of

inadmissibility, as in Kanai, the Service now reasons that the 2002 admission

rendered Neto inadmissible from that day forth, regardless of when he applied for

admission again. I therefore do not consider tolling per se, because that was not the

basis of the agency’s decision regarding Neto. See Regents, 140 S. Ct. at 1907. The

issue is, however, closely parallel.

Kanai indicates, at a minimum, that the Service has not been completely

consistent in its application of (B)(i)(II) to deny applications on similar facts. This

inconsistency cuts against deferring to the Service’s interpretation. See Hayes v.

Harvey, 903 F.3d 32, 46 (3d Cir. 2018) (explaining that one of the “most important

considerations” in deciding whether to defer to an agency’s interpretation otherwise

not afforded Chevron deference is whether the interpretation “‘is consistent and

contemporaneous with other pronouncements of the agency” (citation omitted)).

The Service argues that a court in this District previously interpreted (B)(i)(II) in

Shah v. Thompson, Civ. No. 11-3082, 2015 WL 113339 (D.N.J. Jan. 8, 2015), and that

* * *

In sum, the text, context, purpose, and prior interpretations of (B)(i)(II)

persuade me that that the period of ineligibility runs from the date of

departure, and that 10 years means 10 years. Accordingly, the Service’s denial

of Neto’s application was “not in accordance with law,” 5 U.S.C. § 706(2)(A),

because the act of seeking admission in 2002 does not furnish sufficient

reason to find Neto inadmissible under (B)(i)(II) in 2016.

B. Remedy

I therefore address the question of remedy. The APA empowers courts to

“set aside” unlawful agency action, § 706(2), so the ordinary course is to

“vacat[e] invalid agency action and remand[] the matter to the agency for

further review.” Comite De Apoyo A Los Trabajadores Agricolas v. Perez, 774

F.3d 173, 191 (3d Cir. 2014). The right course here is to vacate the Service’s

denial, declare it unlawful, and remand to the Service for “application of the

correct legal test.” MCPC, Inc. v. NLRB, 813 F.3d 475, 490 (3d Cir. 2016).

I decline to go any farther, as Neto might urge; generally, it is not a

court’s role to direct the agency how to act. Rather, a court’s role is to review

the agency’s decision and, if it cannot be sustained, remand to the agency. See

Regents, 140 S. Ct. at 1907–08; see also INS v. Orlando Ventura, 537 U.S. 12,

16–17 (2002) (“This [remand] principle has obvious importance in the

immigration context.”). Moreover, to the extent Neto seeks injunctive relief, that

relief is effectively already provided by the vacatur and remand. If Neto is

“dissatisfied with [the Service’s] remedy [on remand], [he] would always have

the option to seek review” of that decision in a new action under the APA.

Bennett v. Donovan, 703 F.3d 582, 589 (D.C. Cir. 2013). For that reason,

courts decline to retain jurisdiction after vacating and remanding, and I will do

so as well. E.g., Navajo Nation v. Azar, 302 F. Supp. 3d 429, 441 (D.D.C. 2018).

Shah’s interpretation forecloses Neto’s claim. (Serv. MTD at 11.) Shah is inapplicable,

however, because there, the plaintiff did not wait out the ineligibility period, but filed

an application for adjustment of status within 10 years of her departure. 2015 WL

113339, at *1, 4.

Remand is doubly appropriate because removal of the (B)(i)(II) categorical

bar is not equivalent to a finding that the Service must approve Neto’s

application. It simply frees the Service to consider all other grounds to grant or

deny the application. Put another way, there may be a reason to deny Neto’s

application, but (B)(i)(II) is not it.

IV. CONCLUSION

For the reasons set forth above, the Service’s motion to dismiss is denied,

and Neto’s motion for summary judgment in the alternative is granted.

A separate order will issue.

Dated: December 10, 2020

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge