-E Haoru Niu v. United States of America et al, No. 2:2011cv04317 - Document 16 (C.D. Cal. 2011)

Court Description: ORDER Granting Plaintiff's 14 Ex Parte Application for a Temporary Restraining Order and Order to Show Cause by Judge Dean D. Pregerson. Defendants are hereby ENJOINED from taking any adverse immigration action toward Plaintiff, including revo king or issuing a notice of intent to revoke his approved I-140 visa petition. This injunction shall remain in effect until a court order to the contrary. In addition, a Preliminary Injunction Hearing is set for Thursday, October 20, 2011, at 10:30 am. (See Order for Details). (sch)

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-E Haoru Niu v. United States of America et al Doc. 16 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HAORU NIU, 12 Plaintiff, 13 v. 14 UNITED STATES OF AMERICA, 15 Defendant. ___________________________ ) ) ) ) ) ) ) ) ) ) Case No. CV 11-04317 DDP (Ex) ORDER GRANTING PLAINTIFF’S EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE [Docket No. 14] 16 17 Presently before the court is Plaintiff Dr. Haoru Niu’s Ex 18 Parte Application for a Temporary Restraining Order (“TRO”) and 19 Order to Show Cause Regarding a Preliminary Injunction. 20 has considered the materials submitted by the parties and GRANTS 21 Plaintiff’s application. 22 I. 23 The court BACKGROUND Dr. Niu is a medical doctor and doctor of philosophy in 24 biochemistry with a concentration in molecular genetics. 25 citizen of China but has been in the United States since 2000 on 26 visiting scholar and specialty worker visas. 27 worked as a research associate at the House Research Institute in 28 Los Angeles. (Compl. ¶¶ 3, 30.) He is a Since 2002, he has The Institute is widely known to be one of the world’s premier research centers for deafness, and Dockets.Justia.com 1 its discoveries have led to improved treatment for millions.1 2 Niu, in particular, is conducting genetic research, including the 3 identification and cloning of “mammalian modifier genes,” to find a 4 cure for two common causes of deafness. 5 five years, Dr. Niu has authored at least two relevant articles in 6 peer reviewed journals.2 7 research accomplishments in his complaint. 8 22.) 9 (Id. ¶ 9.) Dr. In the past Dr. Niu details many other notable (Id. ¶¶ 2-3, 7-9, 18- In July 2007, Dr. Niu filed an I-140 visa petition on his own, 10 requesting a national interest waiver of the normal requirement 11 that an employer petition for him. 12 He filed an I-485 application to adjust status to legal permanent 13 resident, based on the petition, at the same time. 14 years later, in March and April 2009, United States Citizenship and 15 Immigration Services (“USCIS”) denied Dr. Niu’s petition and 16 application. 17 Institute filed an I-140 visa petition for Dr. Niu as an 18 “outstanding researcher.” 19 submitted a new I-485 adjustment of status application along with 20 the petition. 21 Institute filed a second, materially identical I-140 visa petition 22 for Dr. Niu. 23 petition on January 22, 2010, but then inexplicably denied the 24 first petition on January 28, 2010. See 8 U.S.C. § 1153(b)(2)(B). Almost two Immediately after, in May 2009, the House Research See 8 U.S.C. § 1153(b)(1)(B). Dr. Niu In December 2009, still waiting for a response, the USCIS approved this second outstanding researcher Accordingly, on March 29, 25 1 26 27 See http://hei.org/about/history/history.html. The court takes judicial notice of relevant facts regarding the House Research Institute and Dr. Niu from the Institute’s website. 2 28 See http://houseinstitute.org/research/friedman/ publications. 2 1 2010, Dr. Niu asked USCIS to transfer the approved I-140 petition 2 to his still pending I-485 adjustment of status application. 3 July 2, 2010, however, USCIS denied the I-485 application, because 4 it had denied the first outstanding researcher petition and refused 5 to apply the second, approved petition. 6 motion to reconsider the denial of his I-485 application, on July 7 26, 2010, as well as a new I-485 application based on the approved 8 petition, on August 3, 2010. 9 motion to reconsider and the new I-485 application, in October 2010 On Dr. Niu therefore filed a USCIS eventually denied both the 10 and April 2011 respectively. 11 because Dr. Niu had ostensibly been without legal status for more 12 than 180 days at the time of filing, as his final temporary visa 13 had expired on June 1, 2009. 14 (Compl. ¶¶ 33-49.) 15 USCIS denied the I-485 application See 8 U.S.C. § 1255(c)(2), (k). On May 19, 2011, Dr. Niu filed a complaint against the United 16 States and various immigration officials, seeking remedies under 17 the Administrative Procedure Act for Defendants’ allegedly 18 arbitrary and capricious denials of his petitions and applications. 19 See 5 U.S.C. §§ 702, 706. 20 informed Dr. Niu of their intent to revoke or issue a notice of 21 intent to revoke his approved I-140 petition. 22 1.) 23 2011, asking the court to enjoin Defendants from taking such 24 action. 25 II. 26 On September 28, 2011, Defendants (Darbinian Decl. ¶ Dr. Niu therefore filed this TRO application on October 4, Legal Standard “Temporary restraining orders are governed by the same 27 standard applicable to preliminary injunctions.” 28 Olivieri, No. 11-CV–00172, 2011 WL 691417, at *2 (D. Nev. Feb. 18, 3 Bender v. 1 2011); see also Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 2 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating the standards for 3 issuing a TRO are “substantially identical” to those for issuing a 4 preliminary injunction). 5 must establish that he is likely to succeed on the merits, that he 6 is likely to suffer irreparable harm in the absence of preliminary 7 relief, that the balance of equities tips in his favor, and that an 8 injunction is in the public interest.” 9 of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Therefore, “[a] plaintiff seeking a [TRO] Am. Trucking Ass'ns v. City 10 Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 11 preliminary injunction is appropriate when a plaintiff demonstrates 12 . . . that serious questions going to the merits were raised and 13 the balance of hardships tips sharply in the plaintiff's favor.” 14 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 15 (9th Cir. 2010) (omission in original). 16 remedy that may only be awarded upon a clear showing that the 17 plaintiff is entitled to such relief. 18 III. 19 “A A TRO is an extraordinary Winter, 555 U.S. at 22. Discussion Dr. Niu has demonstrated that he is likely to suffer 20 irreparable harm unless Defendants are enjoined from revoking his 21 approved I-140 petition. 22 necessary for Dr. Niu to adjust status and obtain permanent 23 residency. 24 would be able to respond to a revocation notice and appeal any 25 revocation decision. 26 prior denials of Dr. Niu’s petitions and applications, along with 27 this most recent adverse initiative, evidence the likelihood of 28 revocation and hence irreparable harm to Dr. Niu - indeed, why By all accounts, an approved petition is It is immaterial that, as Defendants argue, Dr. Niu See 8 C.F.R. §§ 205.2, 1003.3. 4 Defendants’ 1 would Defendants seek revocation if they did not believe it was 2 both likely and material to Dr. Niu’s immigration options? 3 Because Defendants would suffer no discernible hardship, the 4 balance of equities also weigh strongly in Dr. Niu’s favor. 5 Against the likely harm to Dr. Niu, Defendants allege only the 6 generalized inconvenience to USCIS of being restrained from 7 “revok[ing] a petition when appropriate to do so.” 8 4:27.) 9 such restraint in this single instance. (Defs.’ Opp’n They detail no specific hardship that would result from The injunction is clearly 10 in the public interest as well. 11 were revoked, he would be unable to obtain permanent residence in 12 the United States and continue his critical research at the House 13 Institute into cures for deafness. 14 If Dr. Niu’s approved petition Finally, Dr. Niu has shown a likelihood of success on the 15 merits. 16 for an outstanding researcher. 17 No. 07-2148, 2008 WL 2779001, at *1 (E.D. Pa. July 16, 2008) 18 (explaining that 8 U.S.C. § 1153(b)(1) “requires the issuance of a 19 visa to [immigrants] who meet the statutory qualifications”). 20 immigrant qualifies as an outstanding researcher if he or she: 1) 21 “is 22 academic area”; 2) “has at least 3 years of experience in teaching 23 or research in the academic area”; and 3) seeks to enter the United 24 States for a qualifying teaching or research position in that area. 25 8 U.S.C. § 1153(b)(1)(B); see also 8 C.F.R. § 204.5(i)(3) 26 (detailing the evidence that would meet these requirements). 27 28 It appears that Dr. Niu meets the statutory requirements See Gulen v. Chertoff, Civ. Action An recognized internationally as outstanding in a specific As noted, Dr. Niu has made original research contributions to the field of genetics and authored relevant scholarly articles in 5 1 peer review journals. 2 internationally recognized researcher in genetics. 3 204.5(i)(3)(i)(E)-(F). 4 requirements as well, as he has been conducting genetic research at 5 the internationally acclaimed House Research Institute for the past 6 nine years. 7 likely that USCIS’s denial of Dr. Niu’s initial outstanding 8 researcher petition was an abuse of discretion. 9 U.S. Citizenship & Immigration Servs., 596 F.3d 1115, 1118 (9th These two facts qualify Dr. Niu as an See 8 C.F.R. § Dr. Niu meets the second and third See 8 C.F.R. § 204.5(ii)-(iii). It is therefore See Kazarian v. 10 Cir. 2010) (“We have held it an abuse of discretion for the Service 11 to act if there is no evidence to support the decision or if the 12 decision was based on an improper understanding of the law.” 13 (quoting Tongatapu Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 1305, 14 1308 (9th Cir. 1984))). 15 Dr. Niu also persuasively argues that it was arbitrary and 16 capricious for USCIS to refuse to apply his approved I-140 petition 17 to his earlier, still pending I-485 application. 18 justify their refusal with citation to 8 C.F.R. § 204.5(e) and a 19 May 9, 2000 memorandum by USCIS Executive Associate Commissioner 20 Michael A. Pearson. 21 The regulation and memo primarily address retention of an earlier 22 “priority date,” which is not at issue here. 23 Dr. Niu’s request, the memo in fact states that “[t]ransferring a 24 second approved I-140 to a pending adjustment application is 25 generally available to the beneficiary until the I-485 is finally 26 adjudicated.” 27 28 Defendants However, neither support Defendants’ position. Moreover, relevant to Lastly, USCIS likely abused its discretion by denying Dr. Niu’s final I-485 application, based on the approved I-140 6 1 petition, because of his apparent failure to maintain lawful 2 immigration status from June 2, 2009 to August 3, 2010. 3 U.S.C. §§ 1255(c)(2), (k). 4 immigrant’s adjustment of status if it was “through no fault of his 5 own or for technical reasons.” 6 waited from July 2007 to April 2009 for USCIS to adjudicate his 7 initial national interest petition and application. 8 Research institute and Dr. Niu then immediately submitted the first 9 outstanding researcher petition and application, before Dr. Niu’s See 8 Such failure does not preclude an Id. § 1255(c)(2). Here, Dr. Niu The House 10 lawful status expired. 11 deny the application, at which point Dr. Niu promptly moved for 12 reconsideration and filed the final I-485 application. 13 Dr. Niu diligently pursued his immigration options and would have 14 maintained lawful status throughout, but for the three years of 15 delay by USCIS. 16 916274, at *14-15 (D. Or. Mar. 10, 2010) (finding USCIS’s 17 construction of the no fault exception impermissibly narrow); 18 Alimoradi v. U.S. Citizenship & Immigration Servs., No. CV08-02529, 19 at 8-14 (C.D. Cal. Feb. 10, 2009) (same). 20 IV. 21 USCIS, however, waited until July 2010 to In short, See Wong v. Napolitano, No. CV08-937-ST, 2010 WL Conclusion For the reasons stated above, Plaintiffs’ Application for a 22 Temporary Restraining Order and Order to Show Cause for Preliminary 23 Injunction is GRANTED. 24 any adverse immigration action toward Plaintiff, including revoking 25 or issuing a notice of intent to revoke his approved I-140 visa 26 /// 27 /// 28 /// Defendants are hereby ENJOINED from taking 7 1 petition. This injunction shall remain in effect until a court 2 order to the contrary. 3 Hearing is set for Thursday, October 20, 2011, at 10:30 am. In addition, a Preliminary Injunction 4 5 IT IS SO ORDERED. 6 7 Dated: October 11, 2011 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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