” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 n.4 (2008); see Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001) (imposing limiting construction on the phrase “any other class of workers” in light of the surrounding context). The “legislative scheme,” and the severe and constitutionally suspect consequences of a broad reading, Witkovich, 353 U.S. at 200-202, make clear that the President may not use his authority under Section 1182(f) to modify the criteria for denying entry to a class of aliens Congress already addressed in Section Case 1:17-cv-00050-DKW-KJM Document 65-1 Filed 03/08/17 Page 45 of 61 PageID #: 1324 37 1182(a). Because the Order does just that—instructing immigration officers to apply “criteria for determining terrorism-related inadmissibility” that Congress did not establish, Din, 135 S. Ct. at 2140—it is unlawful, and cannot stand. 2.

21 “crimes involving moral turpitude” which rendered her inadmissible to the United States (though the same convictions would not have made her deportable from within the U.S.). See 8 U.S.C. § 1182(a)(2)(A)(i) (providing that conviction of a crime involving moral turpitude renders noncitizen inadmissible, unless it falls within “petty offense” exception); compare 8 U.S.C. § 1227(a)(2)(A)(i) (providing that a single crime involving moral turpitude must be committed within five years of lawful admission in order to render a noncitizen deportable from within the U.S.); 1227(a)(2)(A)(ii) (providing that multiple crimes involving moral turpitude do not render a noncitizen deportable if they arise from a single scheme of criminal conduct). However, because she returned to the United States in the lawful resident status that had been wrongfully stripped from her on the basis of an invalid conviction, she was assimilated to the status of a lawful resident who had never departed the U.S, and was not prevented from re-entering the Unites States even though as an applicant for admission she would have been deemed inadmissible.

III. ADMINISTRATOR VIOLATED 8 U.S.C. §1182(n)(2)(A) BY CONDUCTING AN INVESTIGATION EARLIER THAN TWELVE MONTHS AFTER THE DATE OF THE FAILURE ALLEGED BY GANGJEE (COUNT 3 of COMPLAINT) Gangjee submitted his complaint to the Administrator on January 14, 2013. 8 U.S.C. §1182(n)(2)(A) states that “No investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 Case 1:16-cv-05149-ER Document 34-1 Filed 01/12/17 Page 22 of 25 18 months after the date of the failure or misrepresentation, respectively.” The Administrator violated this statutory mandate immediately upon advising Aleutian that the scope of the investigation extended back to January 15, 2011.

In this case, by contrast, defendant's convictions were not the underlying basis for his deportation and -- unlike his history of illegal entry -- were not convictions that render him inadmissible. See 8 U.S.C. § 1182(a)(2). Indeed, defendant's convictions were entirely unrelated to a deportation that was ordered and carried out years before his arrest for drunk-driving in the instant case.

1(c)(8). There is nothing in the Agreement that reflects an intent to require release of individuals in mandatory detention through use of the parole standard in 8 U.S.C. § 1182(d)(5)(A), which was removal. See Homan Decl.

(“In addition, § 1182(n) contains a comprehensive regulatory enforcement scheme that entrusts the investigation of complaints that aliens may have to the Secretary of Labor and the Attorney General. See 8 U.S.C. § 1182(n)(2)(A)-(n)(5)(A).”). Case4:15-cv-01696-YGR Document50

CONCLUSION Based on the foregoing, the Plaintiff respectfully opposes the Defendants’ motion to dismiss and urges this Court to deny the motion in its entirety. Furthermore, the Plaintiff urges the Court to remand the Plaintiff’s application for a waiver of inadmissibility (Form I-192) under 8 U.S.C. §1182(d)(3) to CBP, with instructions that all appropriate steps must be taken to adjudicate the Plaintiff’s application within 30 days, including expediting the Plaintiff’s background checks with the FBI. See Song, 2007 WL 1101283, at *5 (denying government motion to dismiss and remanding to the agency “to complete adjudication of plaintiffs applications within thirty days”); Haidari, 2006 WL 3544922, at *6 (denying motion to dismiss and remanding to CIS to complete processing of plaintiffs’ adjustment applications within 30 days); see also Ibrahim, 2007 WL 1558521, at *7-8 (ordering government defendants to “forthwith complete the adjudication” of petitioner’s pending application).

Similarly, the Fifth Circuit determined that “§ 1182(n) does not create a private cause of action on behalf of an employee who was allegedly fired or not hired in favor of an H-1B foreign worker.” Watson, 2010 WL 4033991, at *2; see also, e.g., Watson, 196 F. App’x at 307 (holding that the plaintiff “had no private right action in the first instance under 8 U.S.C. § 1182(n)” to pursue a claim that “his former employer … terminated him improperly in favor of H-1B nonimmigrant visa workers”). Numerous district courts agree.

If DHS grants an alien’s I-485 application for adjustment of status, the applicant, of course, will be an alien lawfully admitted for permanent residence, and the unlawful presence bars no longer apply. See 8 U.S.C. § 1182(a)(9)(B)(i) (excluding from its scope “an alien lawfully admitted for permanent residence”). And even if DHS again denies the Form I-485, unlawful presence will begin to accrue only once the denial becomes final.

(emphasis added). There is nothing in 8 U.S.C. 1182 to support going through the Secretary before filing a RICO suit, perhaps why Defendant cites no RICO with an administrative agency connection. Defendant cites 20 C.F.R. 650 et al as part of the argument that filing a complaint with the Secretary is a prerequisite to filing a complaint in federal district court.