05-3270-ag

Butt v. Gonzales UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4

------------- 5 6 August Term 2006 7 8 Submitted: May 8, 2007 Decided: August 23, 2007 9 Last supplemental brief filed: July 30, 2007 10 Errata Filed: September 11, 2007 11 Docket No. 05-3270-ag 12 13 --------------------------------------------------X 14 15 MUHAMMAD BUTT, 16 17 Petitioner, 18 19 - against - 20 21 ALBERTO GONZALES, United States Attorney General, 22 23 Respondent. 24 25 --------------------------------------------------X 26 27 Before: FEINBERG, CALABRESI, and WESLEY, Circuit Judges. 28 29 Petitioner, who intends to seek adjustment of status if and 30 when an employment-based immigrant visa becomes available to him, 31 seeks review of a decision of the Board of Immigration Appea ls 32 affirminga decision of the Immig rati on Judge denying 33 petitioner’s request for a continuance w h ile his employer’s 34 application for a labor certification was pending. We grant the 35 petition, vacate the BIA’s decision, and remand the case for the 36 BIAto consider antecedent questions regarding petitioner’s 37 eligibility for adjustment of status. 38 39 LARISATENBERG (Christina L. Harding, on the 40 br i ef), Gallagher, Malloy & Georges, P.C., 41 Philadelphia, PA, for Petitioner. 42 43 LAURA MCMULLEN FORD, Special Assistant United 44 States Att o rney, (Gregory A. White, United 45 State s Attorney, on the brief), United 461 As discussed be low, the Government contends in its

supplemental brie f that Butt may not have been physically present in the U.S. on December 21, 2000. It is unclear whether the Government is thus contending that Butt may not have entered in February 2000. But the Government has conceded that any -2- States Atto r ney’s Office for the Northern 1 District of Ohio, for Respondent. 2 3 FEINBERG, Circuit Judge: 4 Petitioner MuhammadButt, who intends to seek adjustment of 5 status i f and when an employment-based immigrant visa becomes 6 available to him, seeks review of a June 9, 2005, decision of the 7 Boardof Immigration Appeals (“BIA”) affirming a January 9, 2004, 8 decision of the Immigration Judge ( “IJ ”) denying Butt’s 9

a pplication for a continuance of his removal proceedi ng an d 10 orderinghim removed. Butt argues that t he IJ abused her 11 discretion in denyi ng th e continuance while his employer’s 12 ap plication for a labor certification, which must be app rove d 13 before Butt may seek an emplo ym ent-based immigrant visa, was 14 pending. But before reaching that issue, we remandthe case to 15 the BIA to consider, in the first instance, antecedent questions 16 regardingButt’s eligibility for adjustment o f sta tus, the 17

answers to which may bear on any subsequent c onside ration of 18 whether the IJ abused her discretion in denying the continuance. 19 I. BACKGROUND 20 Butt, a native andcitizen of Pakistan, entered the United 21 States without inspection in February 200 0, 1 and shortly 22i ncon sistencyis likely a typographical error, and its

responsive brief stated that Butt entered the country in February2000, as does the Notice to Appear sent to Butt. In anyevent, except as discussed in Section II.A.1, infra, Butt’s date of entry is not relevant to the disposition of this appeal. -3- th ereaft er sought to adjust his status to that of a lawful 1 permanent resident under 8 U.S.C. § 1255. As set forth in more 2 detail below, because Butt entered without inspection , he m ay 3 applyfor adjustment of status only if he is “grandfathered” as 4 the beneficiary of eithe r a timely-filed petition for 5 classification under section 204 of the Immigration & Nationality 6 Act (“INA”) or a timely-file d appl ication for a labor 7 certification under section 212(a)(5)(A) of the INA. 8 Fu rthermore, he must establish that he was physically pr esen t 9 here on December 21, 2000. 8 U.S.C. § 1255(i)(1)(C). Then, if 10 grandfathered, he may apply for adjustment of status under id. § 11 1255(i)(2). 12 Butt first sought grandfathering andadjustment of status on 13 the basis of a section 204 petition for classification filed by 14 his wife. He married a U.S. citizen o n Apri l 6, 2001, and, 15 shortlythereafter, his wife filed a form I-130 petition to 16 classifyButt as an alien relat ive, and he filed a form I-485 17 application to adjust status on th e grou nd that his wife had 18 filedthe formI-130. Both the I-130 andthe I-485 were denied 192 The pro cess through which an alien pursues employmentbasedadjustment of status is as follows: First, the alien’s prospective employer must file an applic atio n for a labor certification. If the Department of Labor certifies the application, the alien’s prospective employer must then file a FormI-140, Immigrant Petition for Alien Worker, accompanied by the Labor Certifi cation . If the Petition is approved, the alien, who must be residing in the U.S., must file a Form I-485 Applic atio n to Register Permanent Residence or Adjust Status. See Lendo v. Gonzales, No. 05-1715, -- F.3d--, 2007 WL 1982038 at *2 (4th Cir. July 10, 2007). -4- on May 30, 2003, apparently because Butt was a “no show” and thus 1 defaulted. Joint Appendix 58, 61. 2 The Immigration and Naturalization Service commenced removal 3 proceed ings in July 2003. After Butt failed to appear f or a 4 hearing, the IJ ordered him removed to Pakistan. Subsequently, 5 Butt moved to reopen the removal proceedings, and the IJ granted 6 the motion. But t then advised the IJ that he intended to seek 7 adjustment of status on the basis of an employment -b ased 8 immigrant visa, and that the prerequisite application for a labor 9 certification, filed by Butt’s employer on or about December 30, 10 2003 and accepted fo r p rocessing on January 7, 2004, was 11 pen ding. 2 He then requested a continuance of his removal 12 proceedings while the application was pending. The IJ denied the 13 request because “the fact tha t ther e is a [pending] labor 14 certification isn’t grounds for an adjournment, particularly 15 consideringhow long labor certifications t ake an d there’s no 16 guarantee that they’ll be approved.” Because Butt did not apply 173 After this matter was fully briefed before us, the

Department of Labor granted Butt’s labor certification on October 10, 2006. Butt’s prospective employer then filed the I140 petition on October 31, 2006. The record is unclear as to whether Butt thereafter filed an I-485 application. -5- for and was ineligible for any other form of relief, the IJ found 1 himremovable and ordered him removed to Pakistan. As alr ead y 2 noted, the BIA affirmed without opinion in June 2005. Butt filed 3 a timely petition for review of that decision. 3 4 II. ANALYSIS 5 Before us, th e parties have principally argued whether it 6

was an abuse of discretion for the IJ to deny a continuance while 7 the application for a labor certificatio n was pending. But we 8 decline to consider that question at this time and instead remand 9 the case to the BIA to consider an tec edent questions regarding 10 Butt’s eligibility for adjustment of status, the answers to which 11 maybear on any subsequent consideration of whether the IJ abused 12 her discretion in denying the continuance. 13 As noted above, because Butt entered without inspection, he 14 mayapply for adjustment of status only if he is “grandfathered” 15 under 8 U .S.C. § 1255(i)(1). Id. § 1255(i)(1)(A)(i). To b e 16 grandfathered, the alien must be the b eneficiary of either a 17 petition for classification under section 204 of the INA, id. § 18 1154, filed on or before April 30, 2001, id. § 1255(i)(1)(B), or 19

an application for a labor certification under section 204 Byorder dated July 11, 2007, we directed the parties to

provide supplemental briefing addressing whether we should remandthe case to the BIA to address (A)(2) and (B). The last of these briefs was filed on July 30, 2007. -6- 212(a)(5)(A) of the INA, id. § 1182(a)(5)(A), filed on or before 1 April 30, 20 01, id . § 1255(i)(1)(B). In addition, if the 2 petition or application was filed after January 14, 1998, the 3 alien must have been physically present in the U.S. on December 4 21, 2000. Id. § 1 255(i) (1)(C). Then, once grandfathered, the 5 alie n may apply for adjustment of status, which the Attorney 6 General ma y grant i f the alien pays a “fine” filing fee of 7 $ 1,000, id. § 1255(i)(1), and “(A) the alien is eligible to 8 receive an immigrant visa and is admissible to the United States 9 for permanent residence; and (B) an immigrant visa is immediately 10 available to the alien at the time the application is filed,” id. 11 § 1255(i)(2). 12 We remand to the BIA to consider (A) Whether Butt is 13 grandfathered, viz. (1 ) whether Butt was physically present in 14 the United States on Dec ember 21, 2000, and (2) whether the 15 section 204 petition for classification bene fitt ing Butt was 16 “approvable when f il ed,” as required by 8 C.F.R. § 17 245.10(a)( 1)( i)(A) and(B) if Butt is in fact grandfathered on 18 the basis of the section 204 petition for classification, whether 19 he may then seek adjustment of status under 8 U.S.C. § 1255(i) on 20 the basis of an employment-based immigrant visa? 4 21-7- Simplyput, if Butt is not grandfathered or if he may not 1 applyfor adjustment of status on a basis other than an approved 2 section 204 petition for classification, he is inelig ible f or 3 adjustment of status. Accordingly, we grant the petition, vacate 4 the BIA’s decision, and remand the case to the BIA to consider 5 these questions in the first instance. 6 7 A. Whether Butt is “grandfathered” under 8 U .S.C. § 8 1255(i)(1)? 9 10 1. Was Butt physically present in the United 11 States on December 21, 2000? 12 13 First, we remand the case to the B IA for a finding on 14 whether Butt was physically present in the U.S. on December 21, 15 2000. Because the section 204 petit io n for classification 16 benefittingButt was filed after January 1 4, 1998, to be 17 grandfathered, Butt must show that he was physically present in 18 the U.S. o n Dece mber 21, 2000. 8 U.S.C. § 1255(i)(1)(C). 8 19 C.F.R. § 245.10(n) clarifies that the alien bears the burden of 20 proof on this question andspecifies particular types of evidence 21 that will satisfy it. 22 In its supplemental brief, the Government argues that Butt 23 has not met his burden because there is no evidence in the 24 record, of the sort sanctioned by 8 C.F.R. § 245 .10(n) , that 25 establishes his physical presence in the U.S. on December 21, 26 2000. Further mo re, while the section 204 petition for 27 classification and corresponding adjustment of status application 28-8-

claimthat Butt entered the U.S. on February 14, 2000, and the I1 862 Notice to Appear states that he entered the U.S. on or about 2 February28, 2000, the I-140 employment-based visa petition filed 3 byBut t’s em ployer states that he entered on April 6, 2001 4 (though the Government concedes that this date, which is the date 5

on which Butt married his wife, is probably a ty pographical 6 error, see Gov’t Supp. Ltr. Br., dated July 18, 2007, at 3-4). 7 Butt does not address this argum ent in his supplemental 8 submission. 9 If Butt was not physicallypresent on December 21, 2000, he 10 i s not grandfathered, and if he is not grandfathered, he i s 11 ineligible for adjustment of status. Because the agencyhas not 12 made a finding on this question, we remandthe case to the BIA to 13 do so (and to remand to the IJ if necessary). 14 2. Was Butt’s sect i on 204 petition for 15 classification “approvable when filed”? 16 17 Second, we remand the case to the BIAto determine whether 18 the section 204 petition for classification benefitting Butt was 19

“ app rovable when filed” within the meaning of 8 C.F.R. § 20 245.10(a)(1)(i)(A). 21 As noted, to applyfor adjustment of status as an alien who 22 enteredthe U.S. without inspection, Butt must be “grandfathered” 23 under 8 U.S.C § 1255(i)(1). Butt is the beneficiaryof a section 24 204 petition for classification filed on or befor e April 30, 255 Because Butt’s application for a labor certification was

not filed until December 2003, after the April 30, 2001, deadline imposed by 8 U.S.C. § 1255(i)(1)(B) , he is not eligible for grandfathering on that basis. -9- 2001, 5 and, we assume, for purposes of this discussion, that he 1

was physically present in the U.S. on December 2 1, 2000. He 2 therefore satisfies the express statutory requirement set forth 3 in 8 U.S.C. § 1255(i)(1). 4 B ut the implementing regulations impose additional 5 requirements, including that the petition or a pplication be 6 “approvable when filed”: 7 Grandfatheredalien means an alien who is the 8 beneficiary ... of: 9 (A) A petition for classification under section 204 10 of the Act which was properlyf iled with the 11 AttorneyGeneral on or before April 30, 2001, and 12 which was approvable when filed 13 14 8 C.F.R. § 245.10(a)(1)(i) (emphasis added); see a lso id . 15 245.10(i). “Approvable when filed” is defined as follows: 16 [A]s of the date of the filing of the quali fying 17 immigrant visa petition under section 204 of the Act or 18 qualifyingapplication for labor certificati o n, the 19 qualifyingpetition or application was properly filed, 20 mer i torious in fact, and non-frivolous (“frivolous” 21 beingdefined herein as patently without substance) . 22 This determination will be made based o n th e 23 circumstances that existed at the time the qualifying 24 petition or application was filed. 25 26 8 C.F.R. § 245.10(a)(3) (emphasis added). 27 The parties did not initially address whether But t’ s 28 petition was “approvable when filed.” Accordin gl y, as noted 29 above, we solic ited t heir views as to whether we should remand 306 Specifically, Butt, while arguing in passing that his

appl icati on was “meritorious and non-frivolous” and that he submit te d“clear and convincing” evidence showing that the mar riage was bona fide, principally relies on the USCI S Memorandum, which states that “[a]bsent evidence of fraud, when a q ualifying application for labor certification . . . is properly filed and accepted by the United States Department of Labor in accordance with 20 CFR 656.21, USCIS will consider the requirements of 8 CFR 24 5.1 0 related to ‘properly filed’ and ‘approvable when filed’ to have be en m et for grandfathering purposes under section 245(i).” Because there is no evidence of fraud, Butt argues, his application was “approvable when filed.”

7 The Government notes that because Butt defaulted and did not appeal, there was no determination concerning the merit of his petition. Furthermore, neither Butt nor his wife submitted an affidavit of marriage or other documentation suggesting the marriage was bona fide. The Government argues further that Butt’s reliance on the U SCI S Memorandum is misplaced for two reasons. First, the Memorandum states that it “is intended solelyfor the training and guidan ce of USCIS personnel in performingtheir duties relative to the adjudication of applications for adjustment of status. . . . [and] is not intendedto, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law -10- the case to the BIA to consider, in the first instance, whether 1 Butt has satisfied this requirement. In response, Butt, citing 2

a U.S. Citizenship and Immigration Services (“USCIS”) Interoffice 3 Memorandum, dated March 9, 2005 (“USCIS Memorandum”), argued that 4

an application is to be deemed “approvable when filed” absent 5 evidence of fraud, andthere is no such evidence in the record. 6 6 The Government, on the other hand, argues that an application is 7 only“approvable when filed” if it is actually meritorious, and 8 because Butt defaulted on his application, and did not appeal 9 that determination, it is impossible to determine whether it was 10 “approvable when filed.” 7 11. . . by any individual or other party in removal proceedings,

in litigation with the United State s, or in any other form or manner.” Second, the section on which Butt relies concerns applications for labor certification, not petitions for classification.

8 The Government, in its supplemental submission, concedes that “the r ecord is unclear whether the spousal visa petition filedon Butt’s behalf was approvable when filed.” Gov’t Supp. Ltr. Br., dated July 18, 2007, at 1. -11- We decline to resolve this disagreement without the benefit 1 of the BIA’s views. The meaning of “approvable when filed” is 2 ambiguous, especially as applied to the fact s here presented. 8 3 For example, an application maybe “approvable when filed” if, as 4 the Government urges, it is meritorious and therefore should be 5 grantedbased on the facts existing at the time of filing. Under 6 the regulations, an application is “approvable when filed” if it 7 is “meritorious in fact,” which is perhaps most naturally read as 8 requiringthat, based on the facts as they exist at the time of 9 filing, the application should be grante d. Se e supra page 9, 10 quoting8 C.F.R. § 245.10(a)(3); see also, e.g., Lasprilla v. 11 Ashcroft, 365 F.3d 98, 100-01 (1st Cir. 2004) (h olding that 12 applicat ion was not “approvable when filed” because petitioner 13

“ hadtwo opportunities -- in his motion to reopen and in hi s 14 motion to reconsider -- to present a sufficient showing that he 15 was within the exception and thus that the visa application was 16 ‘approvable when filed,’” and failed to do so). But it may also 17 be the case that an application is “approvable when filed” if, as 18-12-

Butt urges, there is no evidence of fraud, if the ap plicat ion 1 states a prima facie case for eligibility, or so methin g else 2 altogether. Indeed, the re gulations require, in the very same 3 sentence requiring that the application be “meritorious in fact,” 4 that it be “non-frivolous,” which wo ul d be a redundant 5 requirement i f the application must be meritorious as the 6 Government defines that term. See supra page 9, quoting 8 C.F.R. 7 § 245.10(a)(3). 8 Furthermore, in light of whatever definition of “approvable 9 when filed” the BIA adopts, was Butt’s application, which was 10 deniedwhen Butt failed to appear, “approvable when filed”? That 11 is, when a petitioner defaults on his application, as Butt did, 12 and does not appeal that determination, how are we to determine 13 whether the application was “approvable when filed”? 14 Given these ambiguities concerning whether Butt’s petition 15

was “approvable when filed” -- a question that is potentially 16 dispositive of thi s petition -- we remand to give the BIA an 17 opportunity to express its views before we decide the petition. 18 B. Whether Butt may seek adjustment of status on the 19 basis of an employment-basedimmigrant visa when he 20 was grandfathered on the basis of a section 20 4 21 petition for classification? 22 23 Third, assuming that Butt is grandfathered, we also remand 24 the case to the BIA t o determine whether Butt may be 25 grandfatheredon the basis of a section 204 petit ion for 269 However, the Government argues that the earliest an

emp loym ent-basedimmigrant visa would be available to Butt is October 2007 (unless he applied in June 2007, when there was a brief wi ndowduring which Butt’s “priority date” would have allowedhim to apply), and he has no right to remain in the -13- classification but then seek adjustment of status on the basis of 1 an employment-based immigrant visa. 2 Butt’s application for a labor certification was filed after 3 April 30, 2001, so he must be grandfathered, if at a ll, on the 4 basis of the section 204 petition for classification, which was 5 filedbefore that d ate. But the section 204 petition for 6

c lassification was eventually denied, so his status can not b e 7 adjustedon that basis. Instead, he plans to seekadjustment of 8 status on the basis of an employment-basedimmigrant visa, if and 9 when it is granted. As a result, he wou ld be grandfathered on 10 the basis of a section 204 petition for classification but then 11 seekadjustment of status on the basis of an employment-based 12 immigrant visa. 13 Does the INA so permit? We also sought the parties’ views 14

on this question in our supple mental briefing order. In its 15 supplemental brief, the Govern me nt appears to concede that, if 16 Butt is grandfathered as the beneficiary of a sect ion 204 17 petition for classification, h is eligibility to apply for 18 adjustment of status o n some other basis, including an 19 employment-basedi mm igrant visa, is preserved under 8 C.F.R. § 20 245.10(a)(3). 9 Butt, of course, agrees. 21countryin the interim. See Hadayat v. Gonzales, 458 F.3d 659,

662 (7th Cir. 2006) (observing that “[w]hat is grandfathered ... is the basic eligibility for adjustment [of status]; in all other respects the individual remains a ‘nonimmigrant’ -- that is, a person with no legal right to remain in the United States unless and until an immigrant visa becomes available”). We decline to address this question until we have the benefit of the BIA’s views on the various questions set forth herein. -14- Although the parties appear to be in agreement on the 1 question of statutory interpretation -- i.e. that Butt may seek 2 adjustment of status on the ba si s of an employment-based 3 immigrant visa even though he was grandfatheredon the basis of 4

a section 204 peti tio n for classification -- we think, without 5 expr essing any views whatsoever on the merits, that we would 6 benefit from the BIA’s views on the issue. 8 C.F.R. § 245.10(i) 7 provides that 8 The denial, withdrawal, or revocation of the approval of 9 a qualifyingimmigrant visa petition, or application for 10 labor certification, that was properly filed on or 11 befo re April 30, 2001, and that was approvable when 12 filed, will not preclude its grandfathered alien 13 (includingthe grandfathered alien’s fami l y members) 14 fromseekingadjustment of status under section 245(i) 15 of the Act on the basis of anothe r approved visa 16 petition, a diversity visa, o r any other ground for 17 adjustment of status under the Act , as appropriate. 18 19 8 C.F.R. § 24 5.10(i ) (emphasis supplied); see also 8 C.F.R. § 20 245.10(a)(3) (stating that to preserve grandfathered status, an 21 alien whose properly filed visa petition was denie d m ust be 22 “othe rw ise eligible to file an application for adjustment of 23 status under section 245(i) of the [INA ]”). In our opinion, 24 these provisions do not unambiguouslycompel the interpretation 25-15-

favoredby the parti es. To be sure, there is nothing in the 1 statutoryor re g ulatory provisions in issue that explicitly 2 requires that the immi grant visa on which basis the Attorney 3 General adjusts an alien’s status be basedon the application or 4 petition through which the alien was grandfathered. Furthermore, 5 the USCIS Memorandum, see supra pages 9-10 & nn.6-7, arguably 6 supports the in terpretation propounded by both parties, namely 7 th at Butt may seek adjustment of status on the bas is of a n 8 employment-basedimmigrant visa even though he was grandfathered 9 on the basis of a section 204 petition for classification. But 10 the statut ory an d regulatory provisions also do not foreclose 11 other interpretations, viz. that the alien must be grandfathered 12 andhave his status adjusted on the same basis or that an alien 13 maybe grandfathered and have his status adjusted on different 14 bases only if he can show changed circumstances, see 8 C.F.R. § 15 245.10(a)(3) (providing that “[a] visa petition that was properly 16 filedon or before April 30, 2001, and was approvable when filed, 17 but was later withdrawn, denied, or revoked due to circumstances 18 t hat have arisen after the time of filing , will preser ve th e 19 alien beneficiary’s grandfathered status if the alien is 20 otherwise eligible to file an applicat ion fo r adjustment of 21 status under section 245(i) of the Act” (emphasis added)). 22 We therefore remandthe case to the BIA to consider, in the 23 first instance, whether, if Butt is grandfathered on the basis of 24-16-

the section 204 petition for c las sification, his status may be 1 adjusted on the basis of an employment-based immigrant visa. 2 3 4 III. CONCLUSION 5 Ambiguities such as these in a complex statutory scheme are 6 best addressed, in the fir st instance, by the expert agency 7 chargedwith administering it. See gene ra lly Chevron, U.S.A., 8 Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45 9 (1984). We therefore grant the petition for review, vacate the 10 BIA’s decision, and remand the case to the BIA to consider the 11 various issues discussedabove. This panel retains jurisdiction 12 to rule upon the instant petition anddecide the issues on appeal 13 followingthe disposition of the remand. See Ci Pan v. United 14 States Att’y Gen., 449 F.3d408, 415 (2d Cir. 2006) (per curiam) 15 (citingUnited States v. Jaco bson, 15 F.3d 19, 21-22 (2d Cir. 16 1994)). 17