Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment

SUMMARY

Plaintiffs are eight foreign-born physicians, each of whom has been employed in a federally-designated medically underserved area for many years.  Each plaintiff is the beneficiary of a National Interest Waiver (“NIW”) petition and has applied for Adjustment of Status to Permanent Resident under Section 5 of the Nursing Relief for Disadvantaged Areas Act (“NRDAA”) of 1999 (Pub. L. 106-95, 113 Stat. 1312). Each has been unlawfully prevented or delayed from obtaining benefits mandated under the law by Defendants’ interim rule published on September 6, 2000 (65 Fed. Reg. 53889-53896 ).

Defendants’ Opposition To Plaintiffs’ Motion for Summary Judgment maintains that  this Court lacks jurisdiction to decide whether the Defendants’ regulations are ultra vires; that the Plaintiffs’ claims are not ripe for judicial review; that the Plaintiffs are unlawfully joined; and that this court lacks authority to review Defendants’ regulations because they are entitled to Chevron-type

deference.  The Plaintiffs respectfully disagree with each of these contentions.

THIS COURT HAS JURISDICTION OVER PLAINTIFFS’ CLAIMS

Defendants’ claim that Plaintiffs have not identified “any waiver of sovereign immunity” which allows this court to assume jurisdiction over this case. See Defendants’ Opposition, pp. 12-13.

Agency actions are generally reviewable under federal question jurisdiction pursuant to 28 U.S.C. § 1331. Reno v. Catholic Social Services, 509 U.S. 43 (1993), citing Califano v. Sanders, 430 U.S. 99, 105 (1977) which holds that, except where statutes preclude review, 28 U.S.C. § 1331 confers jurisdiction on federal courts to review agency action. [1]

“As we stated recently in McNary, however, there is a well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action, and we will accordingly find an intent to preclude such review only if presented with clear and convincing evidence.”  Reno, 509 U.S. at 63-64 (internal citations omitted).

In Califano, 430 U.S. at 105, the Supreme Court stated that “Congress…amend[ed] 28 U.S.C. § 1331 [federal question jurisdiction]… to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate.”  [emphasis added].  The Defendants’ assertion that 28 U.S.C. § 1331 only grants “jurisdiction to the district courts in private actions,” (See, Defendants Opposition, p. 13) is erroneous.

28 U.S.C. § 1331 grants civil federal question jurisdiction to the district courts.  Nevertheless, § 1331 does not, in and of itself, create substantive rights in suits brought against the United States. Thus, if § 1331 is to be used to secure relief against the United States, it must be tied to some additional authority which waives the government’s sovereign immunity. Such a waiver is found in the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et. seq.  The APA, at 5 U.S.C. § 702, states as follows:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.  The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

Even if no statute specifically provides that an agency’s decisions are subject to judicial review, the Supreme Court customarily refuses to treat such silence “as a denial of authority to an aggrieved person to seek appropriate relief in the federal courts.”  Stark v. Wickard, 321 U.S. 288, 309 (1944).  This custom has been “reinforced by the enactment of the [APA] which embodies the basic presumption of judicial review to one ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.’”  Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967); see also Reno, 509 U.S. at 56-57.

The U.S. Court of Appeals for the Ninth Circuit holds that the general federal question statute confers jurisdiction over immigration petitions.  Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 687-90 (9th Cir. 2003); see also Chang v. United States, 327 F.3d 911 (9th Cir. 2003).  The petitioners in Spencer were challenging the United States Citizenship and Immigration Services’ (“CIS”) denial of their immigrant investor visa applications.

In Spencer, the Ninth Circuit held that it had jurisdiction to review the CIS’ denial of the alien’s application for an immigrant investor visa because the statutory framework of 8 U.S.C. §1153(b)(5)(A) provided meaningful standards by which to review the agency’s action.  The Court stated that “[e]ven if a statute gives the Attorney General discretion . . . the courts retain jurisdiction to review whether a particular decision is ultra vires of the statute in question.”

Just as in Spencer, the authority of this Court to review the Plaintiffs’ claims comes directly from the statute, 8 U.S.C. § 1153(b)(2)(B)(ii) which both mandates issuance of national interest waivers to alien physicians, “[t]he Attorney General shall grant a national interest waiver…on behalf of any alien physician…if the alien agrees to work full time…”, and sets out a series of standards for eligibility that the beneficiary of the waiver must meet.  The determination here is clearly guided by the eligibility requirements set out in the statute.

Moreover, the Declaratory Judgment Act, 28 U.S.C. § 2201 provides that in an actual controversy within its jurisdiction, and upon the filing of an appropriate pleading, this Court may declare the rights and other legal relations between interested parties.

The decision to grant declaratory relief is within the sound discretion of the trial court, and there is a considerable difference between ordering a government official to conduct his activities in a certain manner, and simply pronouncing that his conduct is unlawful and should be corrected.  Presbyterian Church (U.S.A.), et.al. v. United States, 752 F. Supp. 1505, 1511 (D.C. Ariz. 1990) (on remand from Presbyterian Church, et.al. v. United States, 870 F. Supp. 518 (9th Cir. 1989)) citing to Olagues v. Russoniello, 770 F.2d 791, 803 (9th Cir. 1985).

THIS CONTROVERSY IS RIPE FOR JUDICIAL RESOLUTION BECAUSE THE             DEFENDANTS’ RULE HAS ADVERSELY AFFECTED THE PLAINTIFFS [2]

In Reno v. Catholic Social Services, 509 U.S. at 56-57, the Supreme Court held that a controversy ripe for judicial resolution if “the effects of the administrative action challenged have been ‘felt in a concrete way by the challenging parties’” citing Abbott Laboratories v. Gardner, 387 U.S. at 148-49.  See also Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).   “The promulgation of a regulation will itself affect parties concretely enough to satisfy this requirement,” Reno, U.S. 509 at 57.

Here, the effects of the Defendants’ interim rule have been “felt in a concrete way” by the Plaintiff physicians.  For example, seven of the eight Plaintiffs are compelled by the regulation to remain working in medically underserved areas far longer than the statutory “aggregate” of three or five years.  The remaining Plaintiff, Dr. Kasthuri, a radiologist, is the beneficiary of a NIW submitted to the CIS on March 31, 2003 which remains pending.  It can be “firmly predicted” that this waiver will be denied because Defendants’ regulations limit such waivers to primary care physicians practicing in medically underserved areas despite the fact that the statute expressly grants benefits to “any alien physician.”  Freedom to Travel Campaign v.  Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996).

Ripeness is a question of law. Ordinarily a formal denial of an alien’s application on the disputed grounds is required, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), but if denial is certain, review will not be barred based on ripeness. Id. at 69-71 (O’Connor concurring).

The Ninth Circuit has expressly adopted the “firm prediction” rule which eliminates the need to await an inevitable application of a regulation to a plaintiff before determining a claim to be justiciable.  Chang v. United States, 327 F.3d 911 (9th Cir. 2003) (holding that recent amendments to the immigration law did not render case moot nor establish an additional administrative appeal that plaintiffs must exhaust before obtaining judicial review; retroactivity analysis involves questions of law, therefore, Court shall conduct the analysis, not CIS) citing Freedom to Travel Campaign , supra.

Courts have held that one need not exhaust administrative remedies that would be futile or impossible to exhaust. Where the agency’s position on the question at issue appears already set, and it is very likely what the result of recourse to administrative remedies would be, such recourse would be futile and is not required. Singh v. INS, 340 F.3d 802, 807 (9th Cir. 2003) (plaintiff does not need to exhaust administrative remedies since it was the CIS that refused to allow him to file his brief; requiring exhaustion would be futile); Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996) (billboard operators “have standing to challenge [a] permit requirement, even though they did not apply for permits, because applying for a permit would have been futile . . . . because . . . the ordinance flatly prohibited [their] signs” ).

In this case, the CIS has issued an interim rule affecting all of the Plaintiffs, and has formally notified several of the Plaintiffs that it is applying its interim rule to them. See the Administrative Record for Dr. Jain, pp. 2, 153-55; Dr. Mamuya, p. 3; Dr. Tandar, pp. 2, 241-42; Dr. Sattar, Plaintiff’s Exhibit 3, p. 47 of the Memorandum of Points & Authorities, p. 47; Dr. Schneider, see attached Exhibit 1:  CIS notice dated January 20, 2004.

Ripeness turns on the constitutional consideration of “whether the plaintiffs face a realistic danger of sustaining a direct injury” from the challenged act, and on the prudential considerations of whether the issue is fit for decision and whether parties will suffer hardship if the court declines to consider it.  Chang, 327 F. 3d at 921-22.  Courts “[do] not require Damocles’ sword to fall before we recognize the realistic danger of sustaining a direct injury.”  Id. at 921 quoting City of Auburn v. Qwest Corp., 260 F.3d 1160, 1171 (9th Cir. 2001).

It is undisputed that the Plaintiff physicians will be required to practice in medically underserved areas for periods substantially longer than the “aggregate” of three or five years mandated by the statute if the CIS is permitted to subject them to its interim rule.
The issues in the instant case are legal and do not require further factual development. The uncertain state of the law is sufficient hardship to prompt judicial review. Chang, 327 F.3d at 922.  The CIS’ rule precludes the Plaintiff physicians from a variety of benefits and delays them from obtaining permanent residence status within the period mandated by statute.  See Plaintiffs’ Memorandum of Points and Authorities, pp. 12-25.

THE PLAINTIFFS ARE PROPERLY JOINED

Federal Rule of Civil Procedure 20(a) states that, “All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action…A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded.” [emphasis added].

Furthermore, “Rule 20…regarding permissive joinder is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits.”  League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977), citing Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974).

In Moore v. New York Cotton Exchange, 270 U.S. 593, 610 (1926), the Supreme Court set a flexible standard for the first prong of the permissive joinder test.  In Moore, the Court explained that: “transaction is a word of flexible meaning.  It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.”  Simply put, “absolute identity of all events is unnecessary.”  Mosely, 497 F.2d at 1333.

As to the second prong, the language of the Federal Rule itself is clear that any common question of law or fact will be sufficient for purposes of permissive joinder.  Here, the Plaintiffs challenge the CIS’ interim rule designed to implement Section 5 of the NRDAA on the ground that it is inconsistent with the statute.  The impermissible nature of these inconsistencies is a question of law common to each Plaintiff.

Defendants’ Opposition cites to the case of Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) as support of their claim that Plaintiffs are not properly joined.  See, Defendants’ Opposition, p. 17.  The facts and issues presented in Coughlin are clearly distinguishable from the case at hand.  The forty-nine plaintiffs in Coughlin had submitted various types of petitions and applications to the former INS.  Plaintiffs’ petitions fell into six distinct categories: (1) twenty plaintiffs were alleging the defendants failed to adjudicate their petitions on behalf of an alien spouse or child; (2) eleven plaintiffs were alleging the defendants failed to adjudicate their applications for adjustment of status based on an approved petition as an alien worker; (3) two plaintiffs were alleging the defendants failed to adjudicate their applications for adjustment of status based on their applications alleging that they followed their spouses to the United States; (4) five plaintiffs were alleging the defendants failed to timely adjudicate their applications to remove conditional status; (5) one plaintiff was alleging he was orally advised that his petition to remove the conditions on residence was denied; and (6) ten plaintiffs were awaiting a decision on their applications for naturalization.

The diverse nature of the applications and petitions involved in Coughlin would necessarily result in different types of relief and processing times for each plaintiff.  The Court found that the plaintiffs were misjoined as there was no allegation of a general pattern or practice of delay.  Coughlin, 130 F.3d at 1350-1351.

In contrast, all the Plaintiffs in the instant action are adversely affected by inconsistencies between the Section 5 of the NRDAA and the CIS’ interim rule. Each Plaintiff is a foreign-born physician pursuing adjustment of status to that of lawful permanent resident of the United States based on a NIW pursuant to 8 U.S.C. § 1153(b)(2)(B)(ii).  It is not required that the immigration histories of the Plaintiffs be identical in all respects.  It is enough that the CIS’ interim rule impacts each Plaintiff’s pursuit of lawful permanent residency in a way which is inconsistent with the plain language of the NRDAA.  The interim rule unlawfully delays or prevents the adjustment of each Plaintiff physician to permanent resident status.  These commonalities are clearly sufficient to meet the standard for permissive joinder.

THE INTERIM RULE IS CONTRARY TO LAW

The Defendants’ maintain that “each of plaintiffs’ challenges to the regulation lacks merit.  In each instance, the regulation properly fills a gap left by Congress or illuminates an ambiguity in the statute itself.”  See Defendants’ Opposition, p. 20.

This assertion is patently false.  In reality, the language of the statute is clear and unambiguous.  The CIS’ interim rule redefines words and phrases in an attempt to rewrite the law in a fashion more to the agency’s liking.  For example, it defines the phrase “any alien physician” to mean “primary care physicians only, not specialists”; the phrase “prior to November 1, 1998” to add the words “…and

still pending on November 12, 1999”; the word “aggregate” to exclude periods of time before and after arbitrary start dates and stop dates; and “a department of public health in any state” to mean “a state department of health.”

The CIS does not seem to understand what every applicant for naturalization who appears before that agency is required to know: that the legislative branch writes the laws and the executive branch enforces the laws.

Here, the CIS is unlawfully attempting to rewrite the law.

THE JUDICIARY IS THE FINAL AUTHORITY ON ISSUES

OF STATUTORY CONSTRUCTION

The issue of whether CIS’ interim rule contradicts the statute is not a matter of discretion, but a question of law.  Questions of law that can be answered with “traditional tools of statutory construction” are within the special expertise of courts, not agencies, and are therefore reviewed by this Court de novo.  INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987) quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984); Chowdhury v. INS, 249 F.3d 970, 972 (9th Cir. 2001).  In Chevron the Supreme Court stated that “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” See also INS v St. Cyr, 533 U.S. 289, 320 n.45 (2001) and AILA v. Reno, 18 F. Supp. 2d 38, 46 (D.C. 1998).

Thus, legal issues are reviewed on a de novo basis and no deference is given to the agency’s decision.  California Cosmetology Coalition v. Riley, 110 F.3d 1454, 1458, 1460 (9th Cir. 1997) (if the intent of Congress is clear, no inquiry should be made regarding whether the administrative interpretation is permissible); Pfaff v. U.S. Department of Housing and Urban Development, 88 F.3d 739, 744 (9th Cir. 1996) (review of an agency’s conclusions of law de novo); Bresgal v. Brock, 843 F.2d 1163, 1168 (9th Cir. 1987) (courts are final authorities on issues of statutory interpretation); S. Cal. Edison Co. v. FERC, 770 F.2d 779, 782 (9th Cir. 1985) (court is the final authority on statutory construction and must reject administrative constructions inconsistent with the statutory mandate).  Deference is inappropriate where there are compelling indications that the agency is wrong. Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94-95 (1973).

If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (declining to defer to the agency when Congress intended the filing period for motions to reopen to operate as a statute of limitations and not a jurisdictional requirement).

Here, Congress specifically mandated that the Attorney General “shall grant a national interest waiver” on behalf of “any alien physician” and that “no permanent resident visa may be issued to an alien physician…by the Secretary of State… and the Attorney General may not adjust the status of such an alien physician from that of nonimmigrant alien to that of a permanent resident alien…until such time as the alien has worked full time as a physician for an aggregate of 5 years.” [emphasis added]  8 U.S.C. § 1153(b)(2)(B)(ii).

In all cases involving statutory construction, the court’s starting point must be the language employed by Congress, and the court assumes that the legislative purpose is expressed by the ordinary meaning of the words used.

For example, as stated above, the statute requires physicians wishing to adjust their status to permanent residents to work in a medically underserved area for an “aggregate” of either three or five years.  Contrary to the Defendants’ claim (see, Defendants’ Opposition, p. 22), the definition of the word “aggregate” is clear, and it is not necessary or proper “for the agency to fill in the gap by regulation.”  The plain meaning of “aggregate” is as follows:  “formed by the collection of units or particles into a body, mass, or amount; collective as a clustered…taking all units as a whole; to collect or gather into a mass or whole; to amount in the aggregate to: total; the whole sum or amount: sum total.” See Webster-Merriam OnLine Dictionary.  The ordinary meaning of “aggregate” must be given effect by this Court to include all periods of time that a physician practices in a medically underserved area, except in J status, thus satisfying the statutory mandate.

All the Plaintiff physicians in this case were authorized by CIS to work in medically underserved areas during their respective nonimmigrant status. See, Administrative Record for Dr. Mamuya, pp. 16, 40 (H-1B visa and approval notice to work for employer); Dr. Jain, pp. 79-85 (H-1B approval notices for various employers); Dr. Nedelescu, pp. 84-85 (H-1B approval notices); Dr. Kasthuri, pp. 66-67 (H-1B approval notices);  Dr. Krishnamoorthy, p. 95 (H-1B approval notice);  Dr. Schneider, pp. 15-16 (O-1 approval notices); Dr. Tandar, p. 326.  For Dr. Sattar see, Exhibit 2, pp. 39-41 attached to Plaintiffs’ Memorandum of Points & Authorities.

The Defendants state the obvious by declaring that the “start date” of the physician’s service cannot begin until CIS authorizes employment. See, Defendants’ Opposition, p. 23. Yet, it is their rule which excludes portions of the Plaintiffs’ qualifying employment from counting toward the statutory aggregate of three or five years despite the fact that their employment was explicitly authorized by the CIS.

In calculating the aggregate three or five years of service, Congress specifically excluded the time a physician has practiced in a medically underserved area while in “J” exchange visitor status.  The statute reads as follows: “…until such time as the alien has worked full time as a physician for an aggregate of 5 years (not including the time served in the status of an alien described in section 1101(a)(15)(J) of this title…” [emphasis added] 8 U.S.C. § 1153(b)(2)(B)(ii)(II).  Congress could have, but did not, exclude time that a physician served in another immigration status such as an “H-1B” specialty occupation worker or as an “O-1” person of extraordinary ability.

Yet, the rule ignores the clear language of the statute and excludes time served in a medically underserved area in CIS-authorized “H-1B” or “O-1” status which precedes arbitrary “start dates” created by regulation.   For example, the rule mandates that a physician who changes his status from J-1 to H-1B is entitled to have his service requirement start on the date that the change of status occurs. See 8 C.F.R. § 245.18(e)(2).  However, the “start date” for a physician who has never held J-1 status does not begin until the CIS approves a NIW petition on his behalf. See 8 C.F.R. § 204.12(b).  The rule offers no explanation for its arbitrary and disparate treatment of these physicians.

NATIONAL INTEREST WAIVER PETITIONS

FILED PRIOR TO NOVEMBER 1, 1998

On August 7, 1998, the CIS designated Matter of New York State Department of Transportation (“NYSDOT”),  22 I & N Dec. 206, Int. Dec. 3363  (Comm’r 1998), as a precedent decision.

NYSDOT established a three-part test for all NIW petitions: (1) the beneficiary must seek to work in an area of “substantial intrinsic merit”; (2) the beneficiary must provide a benefit that is national in scope; and (3) the petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.

Before NYSDOT, the CIS had consistently approved NIW petitions for physicians practicing in medically underserved areas.  See attached Exhibit 2: Letter dated November 22, 1995, from Louis D. Crocetti, Jr., INS Associate Commissioner for Examinations, published in the AILA (American Immigration Lawyers Association) Monthly Mailing, January 1996.

NIW petitions filed on behalf of physicians after the decision were dismissed by the CIS under NYSDOT’s third prong. See Administrative Record, Dr. Tandar, pp. 241-42; Dr. Jain, pp. 137-140 [3] ; see Plaintiffs’ Memorandum of Points and Authorities, Exhibit 2: Notice issued to Dr. Sattar, pp. 45-46

In 1999, Congress enacted section 5 of the NRDAA amending 8 U.S.C. §1153(b)(2)(B)(ii) to require that the Attorney General grant a NIW on behalf of any alien physician who qualifies under the statute.  Under subsection (IV) entitled “Effective date”, the statute provides

The requirements of this subsection do not affect waivers on behalf of alien physicians approved under subsection (b)(2)(B) of this section before the enactment of this subsection. In the case of a physician for whom an application for a waiver was filed under subsection (b)(2)(B) of this section prior to November 1, 1998, the Attorney General shall grant a national interest waiver pursuant to subsection (b)(2)(B) of this section except that the alien is required to have worked full time as a physician for an aggregate of 3 years (not including time served in the status of an alien described in section 1101(a)(15)(J) of this title) before a visa can be issued to the alien… [emphasis added]  8 U.S.C. § 1153(b)(2)(B)(ii)(IV).

Thus, the clear language of the statute permits physicians on whose behalf NIW petitions were submitted prior to November 1, 1998 to adjust status to permanent residence after having worked full time in a medically underserved area for an aggregate of three years rather than the usual five years.

The interim rule improperly and in direct contravention of clear statutory language adds a condition subsequent to this requirement: that the three-year apply only if the NIW was still pending on the law’s date of enactment.  The Defendants’ argue that the law is “silent” on the issue of NIW petitions which were denied prior to the “November 1, 1999” (sic) enactment date.  See, Defendants’ Opposition, p. 26.  This is simply untrue.  The statute creates an exception for “waivers…filed prior to November 1, 1998” irrespective of whether they were approved, denied or pending on the law’s effective date (November 12, 1999).

Had Congress intended the three-year medical service requirement to apply only to those NIW petitions pending on November 12, 1999, Congress would have said so.

THE INTERIM RULE ATTEMPTS TO UNLAWFULLY EXCLUDE

SPECIALISTS FROM BENEFITS UNDER THE LAW

The CIS’ interim rule excluding specialists from the benefits of the NRDAA is in direct conflict with the law.  The statute provides that “any alien physician” who agrees to work full time “in an area or areas designated by the Secretary of Heath and Human Services as having a shortage of health care professionals…” shall be granted a National Interest Waiver.  8 U.S.C. § 1153(b)(2)(B)(ii)(I).

Defendants advance the following argument to justify this departure from the clear statutory language: because the Department of the Health and Human Services’ (HHS) designation of medically underserved areas or primary medical health professional shortage areas is based on the ratio of primary care physicians to patients, it is reasonable to limit the benefits of Section 5 of the NRDAA to primary care physicians.  See Defendants’ Opposition, p. 21.

However, it is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.  Perrin v. United States, 444 U.S. 37, 42 (1979).

When interpreting a statute, the objective is to ascertain and enforce the intent of Congress.  Bresgal v. Brock, 843 F.2d 1163, 1166 (9th Cir. 1988).  Courts assume that Congress expresses its intentions in the words it uses, Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985); Moorhead v. United States, 774 F.2d 936, 941 (9th Cir. 1985), and that these words take their ordinary, contemporary, common meaning, unless otherwise defined. Purba v. INS, 884 F.2d 516, 517 (9th Cir. 1989), citing to Perrin, at 42.

The statute extends it benefits to “any alien physician.”  “Physician” is defined as a “person skilled in the art of healing; specifically: a doctor of medicine; one exerting a remedial or salutary influence.”  Webster-Merriam OnLine Dictionary.  This definition could not be clearer.  Absent a clear expression of a contrary intention, the plain meaning of the word “physician” in 8 U.S.C. § 1153(b)(2)(B)(ii) is conclusive.  If Congress had intended to restrict the granting of national interest waivers to primary care physicians, it would have said so.

Section 5 of the NRDAA is intended to provide adequate healthcare coverage to Americans living in medically underserved communities.  By excluding specialists, the interim rule unreasonably restricts the intended benefits of the NRDAA to such communities.  Congress grants physicians who are specialists practicing medicine in HPSAs both financial and immigration benefits.  See Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Summary Judgment, pp. 19-20.

The Congressional Record contains the following statements regarding section 5 of the NRDAA:

[The NRDAA] would create a new temporary registered nurse visa program designated ‘H-1C’…To be able to petition for an alien, an employer would have to meet four conditions.  First, the employer would have to be located in a health professional shortage area as designated by the Department of Health and Human Services…National interest waivers will be available to those alien physicians who agree to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals…This provision ensures that residents of areas with a shortage of health care professionals will have access to quality health care.”  [emphasis added] 145 Cong. Rec. H11321 –11321 (daily ed. Nov. 2, 1999).

The Defendants confuse a phrase which designates the location where the nurse or physician must serve with a restriction as to who is entitled to receive benefits under the statute.  To hold otherwise results in the absurd conclusion that in order for a registered nurse who practices in a medically-underserved area to qualify for benefits under the NRDAA, she must be a primary care physician.

THE LAW DOES NOT REQUIRE PHYSICIANS WHO RELOCATE TO FILE ADDITIONAL NATIONAL INTEREST WAIVERS

Defendants attempt to justify the portion of the interim rule which requires a physician who relocates to another job in a medically underserved area to submit an additional national interest waiver each time that he relocates.

Not only is there no support for this contention in NRDAA, the Defendants’ position conflicts with a section or a statute enacted subsequent to NRDAA, “The American Competitiveness in the 21st Century Act of 2000” (AC21) (Public Law 106-313), 8 U.S.C. § 1154(j).  See Defendants’ Opposition, footnote 13, p. 30.  This statute was enacted in order to benefit “long delayed applicants for adjustment of status to permanent residence.”  It provides that an approved employment-based immigrant petition remains valid when an individual changes jobs if his application to adjust status remains unadjudicated for 180 days or more.  Defendants’ statement that CIS has not issued regulations implementing 8 U.S.C. § 1154(j), is irrelevant since this Court possesses the authority to interpret statutes.  See Defendants’ Opposition, footnote 13, p. 30.

Clearly, NRDAA does not require that an additional NIW petition be filed with CIS each time that the physician changes the location of his employment. AC21 specifically exempts certain applicants for adjustment of status who change their employment while their applications for adjustment of status are pending from the burden of having new petitions submitted on their behalf.

Further, the CIS has other, less burdensome, ways to insure that a physician continues to be employed in medically-underserved areas for five years.

For example, the Administrative Record for Dr. Jain, p. 2 contains a CIS notice regarding his application to adjust status. The notice states “[s]ubmit your Federal Income Tax returns, including…W-2[s]…for 2001, 2002, 2003, and 2004…submit an updated and original letter from your employer that attests to your full-time medical practice, the date on which you began this service, and your current employment status. This letter shall address any instances of breaks in employment, other than routine breaks such as paid vacations. Submit a copy of your license to practice medicine in the United States.”

A physician should not have to have an additional NIW petition submitted on his behalf each time that he changes employment in order to prove he is in compliance with the law when the CIS utilizes other methods to track a physician’s compliance.

OTHER ISSUES

Regarding other issues where the CIS interim rule conflicts with the clear language of the statute, we believe that these are adequately explained in our Motion for Summary Judgment and that no additional explanation is required.

CONCLUSION

The Plaintiffs have established that this Court has jurisdiction over this case, that their claims are ripe for judicial resolution, and that they are properly joined.  The Defendants’ Opposition ignores clear statutory language and the numerous conflicts between the interim rule and the statute.

This Court should declare those portions of the rule which conflict with the statute invalid, and order that the Plaintiffs be entitled to have their national interest waivers and applications for adjustment of status to permanent residence adjudicated without regard to those portions of the rule that contravene the statute.

Dated: February 23, 2004

Respectfully submitted,

_____________________

Carl Shusterman

Attorney for Plaintiffs

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Carl Shusterman

Immigration Attorney Carl Shusterman has 40+ years of experience. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) from 1976 until 1982, when he entered private practice. He has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in SuperLawyers Magazine. Today, he serves as Of Counsel to JR Immigration Law Firm.