05-3270-ag

Butt v. Gonzales

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4 

5 -------------

6

7 August Term 2006

8

9 Submitted: May 8, 2007 Decided: August 23, 2007

10 Last supplemental brief filed: July 30, 2007

11 Errata Filed: September 11, 2007

12 Docket No. 05-3270-ag

13

14 --------------------------------------------------X

15

16 MUHAMMAD BUTT, 

17

18 Petitioner,

19

20 - against -

21

22 ALBERTO GONZALES, United States Attorney General,

23

24 Respondent.

25

26 --------------------------------------------------X

27

28 Before: FEINBERG, CALABRESI, and WESLEY, Circuit Judges.

29

30 Petitioner, who intends to seek adjustment of status if and

31 when an employment-based immigrant visa becomes available to him,

32 seeks review of a decision of the Board of Immigration Appeals

33 affirming a decision of the Immigration Judge denying

34 petitioner’s request for a continuance while his employer’s

35 application for a labor certification was pending. We grant the

36 petition, vacate the BIA’s decision, and remand the case for the

37 BIA to consider antecedent questions regarding petitioner’s

38 eligibility for adjustment of status.

39

40 LARISA TENBERG (Christina L. Harding, on the

41 brief), Gallagher, Malloy & Georges, P.C.,

42 Philadelphia, PA, for Petitioner.

43

44 LAURA MCMULLEN FORD, Special Assistant United

45 States Attorney, (Gregory A. White, United

46 States Attorney, on the brief), United
1 As discussed below, the Government contends in its

supplemental brief 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

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1 States Attorney’s Office for the Northern

2 District of Ohio, for Respondent.

3

4 FEINBERG, Circuit Judge:

5 Petitioner Muhammad Butt, who intends to seek adjustment of

6 status if and when an employment-based immigrant visa becomes

7 available to him, seeks review of a June 9, 2005, decision of the

8 Board of Immigration Appeals (“BIA”) affirming a January 9, 2004,

9 decision of the Immigration Judge (“IJ”) denying Butt’s

10 application for a continuance of his removal proceeding and

11 ordering him removed. Butt argues that the IJ abused her

12 discretion in denying the continuance while his employer’s

13 application for a labor certification, which must be approved

14 before Butt may seek an employment-based immigrant visa, was

15 pending. But before reaching that issue, we remand the case to

16 the BIA to consider, in the first instance, antecedent questions

17 regarding Butt’s eligibility for adjustment of status, the

18 answers to which may bear on any subsequent consideration of

19 whether the IJ abused her discretion in denying the continuance.

20 I. BACKGROUND

21 Butt, a native and citizen of Pakistan, entered the United

States without inspection in February 2000,1 22 and shortly
inconsistency is likely a typographical error, and its

responsive brief stated that Butt entered the country in

February 2000, as does the Notice to Appear sent to Butt. In

any event, except as discussed in Section II.A.1, infra, Butt’s

date of entry is not relevant to the disposition of this appeal.

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1 thereafter sought to adjust his status to that of a lawful

2 permanent resident under 8 U.S.C. § 1255. As set forth in more

3 detail below, because Butt entered without inspection, he may

4 apply for adjustment of status only if he is “grandfathered” as

5 the beneficiary of either a timely-filed petition for

6 classification under section 204 of the Immigration & Nationality

7 Act (“INA”) or a timely-filed application for a labor

8 certification under section 212(a)(5)(A) of the INA.

9 Furthermore, he must establish that he was physically present

10 here on December 21, 2000. 8 U.S.C. § 1255(i)(1)(C). Then, if

11 grandfathered, he may apply for adjustment of status under id. §

12 1255(i)(2).

13 Butt first sought grandfathering and adjustment of status on

14 the basis of a section 204 petition for classification filed by

15 his wife. He married a U.S. citizen on April 6, 2001, and,

16 shortly thereafter, his wife filed a form I-130 petition to

17 classify Butt as an alien relative, and he filed a form I-485

18 application to adjust status on the ground that his wife had

19 filed the form I-130. Both the I-130 and the I-485 were denied
2 The process through which an alien pursues employmentbased adjustment of status is as follows: First, the alien’s

prospective employer must file an application for a labor

certification. If the Department of Labor certifies the

application, the alien’s prospective employer must then file a

Form I-140, Immigrant Petition for Alien Worker, accompanied by

the Labor Certification. If the Petition is approved, the

alien, who must be residing in the U.S., must file a Form I-485

Application 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). 

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1 on May 30, 2003, apparently because Butt was a “no show” and thus

2 defaulted. Joint Appendix 58, 61.

3 The Immigration and Naturalization Service commenced removal

4 proceedings in July 2003. After Butt failed to appear for a

5 hearing, the IJ ordered him removed to Pakistan. Subsequently,

6 Butt moved to reopen the removal proceedings, and the IJ granted

7 the motion. Butt then advised the IJ that he intended to seek

8 adjustment of status on the basis of an employment-based

9 immigrant visa, and that the prerequisite application for a labor

10 certification, filed by Butt’s employer on or about December 30,

11 2003 and accepted for processing on January 7, 2004, was

pending.2 12 He then requested a continuance of his removal

13 proceedings while the application was pending. The IJ denied the

14 request because “the fact that there is a [pending] labor

15 certification isn’t grounds for an adjournment, particularly

16 considering how long labor certifications take and there’s no

17 guarantee that they’ll be approved.” Because Butt did not apply
3 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. 

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1 for and was ineligible for any other form of relief, the IJ found

2 him removable and ordered him removed to Pakistan. As already

3 noted, the BIA affirmed without opinion in June 2005. Butt filed

a timely petition for review of that decision.3 4 

5 II. ANALYSIS

6 Before us, the parties have principally argued whether it

7 was an abuse of discretion for the IJ to deny a continuance while

8 the application for a labor certification was pending. But we

9 decline to consider that question at this time and instead remand

10 the case to the BIA to consider antecedent questions regarding

11 Butt’s eligibility for adjustment of status, the answers to which

12 may bear on any subsequent consideration of whether the IJ abused

13 her discretion in denying the continuance. 

14 As noted above, because Butt entered without inspection, he

15 may apply for adjustment of status only if he is “grandfathered”

16 under 8 U.S.C. § 1255(i)(1). Id. § 1255(i)(1)(A)(i). To be

17 grandfathered, the alien must be the beneficiary of either a

18 petition for classification under section 204 of the INA, id. §

19 1154, filed on or before April 30, 2001, id. § 1255(i)(1)(B), or

20 an application for a labor certification under section
4 By order dated July 11, 2007, we directed the parties to

provide supplemental briefing addressing whether we should

remand the case to the BIA to address (A)(2) and (B). The last

of these briefs was filed on July 30, 2007. 

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1 212(a)(5)(A) of the INA, id. § 1182(a)(5)(A), filed on or before

2 April 30, 2001, id. § 1255(i)(1)(B). In addition, if the

3 petition or application was filed after January 14, 1998, the

4 alien must have been physically present in the U.S. on December

5 21, 2000. Id. § 1255(i)(1)(C). Then, once grandfathered, the

6 alien may apply for adjustment of status, which the Attorney

7 General may grant if the alien pays a “fine” filing fee of

8 $1,000, id. § 1255(i)(1), and “(A) the alien is eligible to

9 receive an immigrant visa and is admissible to the United States

10 for permanent residence; and (B) an immigrant visa is immediately

11 available to the alien at the time the application is filed,” id.

12 § 1255(i)(2).

13 We remand to the BIA to consider (A) Whether Butt is

14 grandfathered, viz. (1) whether Butt was physically present in

15 the United States on December 21, 2000, and (2) whether the

16 section 204 petition for classification benefitting Butt was

17 “approvable when filed,” as required by 8 C.F.R. §

18 245.10(a)(1)(i)(A) and (B) if Butt is in fact grandfathered on

19 the basis of the section 204 petition for classification, whether

20 he may then seek adjustment of status under 8 U.S.C. § 1255(i) on

the basis of an employment-based immigrant visa?4 21 
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1 Simply put, if Butt is not grandfathered or if he may not

2 apply for adjustment of status on a basis other than an approved

3 section 204 petition for classification, he is ineligible for

4 adjustment of status. Accordingly, we grant the petition, vacate

5 the BIA’s decision, and remand the case to the BIA to consider

6 these questions in the first instance. 

7

8 A. Whether Butt is “grandfathered” under 8 U.S.C. §

9 1255(i)(1)?

10

11 1. Was Butt physically present in the United

12 States on December 21, 2000?

13

14 First, we remand the case to the BIA for a finding on

15 whether Butt was physically present in the U.S. on December 21,

16 2000. Because the section 204 petition for classification

17 benefitting Butt was filed after January 14, 1998, to be

18 grandfathered, Butt must show that he was physically present in

19 the U.S. on December 21, 2000. 8 U.S.C. § 1255(i)(1)(C). 8

20 C.F.R. § 245.10(n) clarifies that the alien bears the burden of

21 proof on this question and specifies particular types of evidence

22 that will satisfy it.

23 In its supplemental brief, the Government argues that Butt

24 has not met his burden because there is no evidence in the

25 record, of the sort sanctioned by 8 C.F.R. § 245.10(n), that

26 establishes his physical presence in the U.S. on December 21,

27 2000. Furthermore, while the section 204 petition for

28 classification and corresponding adjustment of status application
-8-

1 claim that Butt entered the U.S. on February 14, 2000, and the I2 862 Notice to Appear states that he entered the U.S. on or about

3 February 28, 2000, the I-140 employment-based visa petition filed

4 by Butt’s employer states that he entered on April 6, 2001

5 (though the Government concedes that this date, which is the date

6 on which Butt married his wife, is probably a typographical

7 error, see Gov’t Supp. Ltr. Br., dated July 18, 2007, at 3-4).

8 Butt does not address this argument in his supplemental

9 submission. 

10 If Butt was not physically present on December 21, 2000, he

11 is not grandfathered, and if he is not grandfathered, he is

12 ineligible for adjustment of status. Because the agency has not

13 made a finding on this question, we remand the case to the BIA to

14 do so (and to remand to the IJ if necessary).

15 2. Was Butt’s section 204 petition for

16 classification “approvable when filed”?

17

18 Second, we remand the case to the BIA to determine whether

19 the section 204 petition for classification benefitting Butt was

20 “approvable when filed” within the meaning of 8 C.F.R. §

21 245.10(a)(1)(i)(A).

22 As noted, to apply for adjustment of status as an alien who

23 entered the U.S. without inspection, Butt must be “grandfathered”

24 under 8 U.S.C § 1255(i)(1). Butt is the beneficiary of a section

25 204 petition for classification filed on or before April 30,
5 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.

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2001,5 1 and, we assume, for purposes of this discussion, that he

2 was physically present in the U.S. on December 21, 2000. He

3 therefore satisfies the express statutory requirement set forth

4 in 8 U.S.C. § 1255(i)(1). 

5 But the implementing regulations impose additional

6 requirements, including that the petition or application be

7 “approvable when filed”: 

8 Grandfathered alien means an alien who is the

9 beneficiary ... of:

10 (A) A petition for classification under section 204

11 of the Act which was properly filed with the

12 Attorney General on or before April 30, 2001, and

13 which was approvable when filed

14

15 8 C.F.R. § 245.10(a)(1)(i) (emphasis added); see also id.

16 245.10(i). “Approvable when filed” is defined as follows:

17 [A]s of the date of the filing of the qualifying

18 immigrant visa petition under section 204 of the Act or

19 qualifying application for labor certification, the

20 qualifying petition or application was properly filed,

21 meritorious in fact, and non-frivolous (“frivolous”

22 being defined herein as patently without substance).

23 This determination will be made based on the

24 circumstances that existed at the time the qualifying

25 petition or application was filed.

26

27 8 C.F.R. § 245.10(a)(3) (emphasis added).

28 The parties did not initially address whether Butt’s

29 petition was “approvable when filed.” Accordingly, as noted

30 above, we solicited their views as to whether we should remand
6 Specifically, Butt, while arguing in passing that his

application was “meritorious and non-frivolous” and that he

submitted “clear and convincing” evidence showing that the

marriage was bona fide, principally relies on the USCIS

Memorandum, which states that “[a]bsent evidence of fraud, when

a qualifying 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 245.10 related to ‘properly filed’ and

‘approvable when filed’ to have been met 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 USCIS Memorandum is misplaced for two

reasons. First, the Memorandum states that it “is intended

solely for the training and guidance of USCIS personnel in

performing their duties relative to the adjudication of

applications for adjustment of status. . . . [and] is not

intended to, does not, and may not be relied upon to create any

right or benefit, substantive or procedural, enforceable at law

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1 the case to the BIA to consider, in the first instance, whether

2 Butt has satisfied this requirement. In response, Butt, citing

3 a U.S. Citizenship and Immigration Services (“USCIS”) Interoffice

4 Memorandum, dated March 9, 2005 (“USCIS Memorandum”), argued that

5 an application is to be deemed “approvable when filed” absent

evidence of fraud, and there is no such evidence in the record.6 6

7 The Government, on the other hand, argues that an application is

8 only “approvable when filed” if it is actually meritorious, and

9 because Butt defaulted on his application, and did not appeal

10 that determination, it is impossible to determine whether it was

“approvable when filed.”7 11
. . . by any individual or other party in removal proceedings,

in litigation with the United States, 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 record is unclear whether the spousal visa petition

filed on Butt’s behalf was approvable when filed.” Gov’t Supp.

Ltr. Br., dated July 18, 2007, at 1.

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1 We decline to resolve this disagreement without the benefit

2 of the BIA’s views. The meaning of “approvable when filed” is

ambiguous, especially as applied to the facts here presented.8 3

4 For example, an application may be “approvable when filed” if, as

5 the Government urges, it is meritorious and therefore should be

6 granted based on the facts existing at the time of filing. Under

7 the regulations, an application is “approvable when filed” if it

8 is “meritorious in fact,” which is perhaps most naturally read as

9 requiring that, based on the facts as they exist at the time of

10 filing, the application should be granted. See supra page 9,

11 quoting 8 C.F.R. § 245.10(a)(3); see also, e.g., Lasprilla v.

12 Ashcroft, 365 F.3d 98, 100-01 (1st Cir. 2004) (holding that

13 application was not “approvable when filed” because petitioner

14 “had two opportunities -- in his motion to reopen and in his

15 motion to reconsider -- to present a sufficient showing that he

16 was within the exception and thus that the visa application was

17 ‘approvable when filed,’” and failed to do so). But it may also

18 be the case that an application is “approvable when filed” if, as
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1 Butt urges, there is no evidence of fraud, if the application

2 states a prima facie case for eligibility, or something else

3 altogether. Indeed, the regulations require, in the very same

4 sentence requiring that the application be “meritorious in fact,”

5 that it be “non-frivolous,” which would be a redundant

6 requirement if the application must be meritorious as the

7 Government defines that term. See supra page 9, quoting 8 C.F.R.

8 § 245.10(a)(3).

9 Furthermore, in light of whatever definition of “approvable

10 when filed” the BIA adopts, was Butt’s application, which was

11 denied when Butt failed to appear, “approvable when filed”? That

12 is, when a petitioner defaults on his application, as Butt did,

13 and does not appeal that determination, how are we to determine

14 whether the application was “approvable when filed”? 

15 Given these ambiguities concerning whether Butt’s petition

16 was “approvable when filed” -- a question that is potentially

17 dispositive of this petition -- we remand to give the BIA an

18 opportunity to express its views before we decide the petition.

19 B. Whether Butt may seek adjustment of status on the

20 basis of an employment-based immigrant visa when he

21 was grandfathered on the basis of a section 204

22 petition for classification?

23

24 Third, assuming that Butt is grandfathered, we also remand

25 the case to the BIA to determine whether Butt may be

26 grandfathered on the basis of a section 204 petition for
9 However, the Government argues that the earliest an

employment-based immigrant visa would be available to Butt is

October 2007 (unless he applied in June 2007, when there was a

brief window during which Butt’s “priority date” would have

allowed him to apply), and he has no right to remain in the

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1 classification but then seek adjustment of status on the basis of

2 an employment-based immigrant visa. 

3 Butt’s application for a labor certification was filed after

4 April 30, 2001, so he must be grandfathered, if at all, on the

5 basis of the section 204 petition for classification, which was

6 filed before that date. But the section 204 petition for

7 classification was eventually denied, so his status cannot be

8 adjusted on that basis. Instead, he plans to seek adjustment of

9 status on the basis of an employment-based immigrant visa, if and

10 when it is granted. As a result, he would be grandfathered on

11 the basis of a section 204 petition for classification but then

12 seek adjustment of status on the basis of an employment-based

13 immigrant visa. 

14 Does the INA so permit? We also sought the parties’ views

15 on this question in our supplemental briefing order. In its

16 supplemental brief, the Government appears to concede that, if

17 Butt is grandfathered as the beneficiary of a section 204

18 petition for classification, his eligibility to apply for

19 adjustment of status on some other basis, including an

20 employment-based immigrant visa, is preserved under 8 C.F.R. §

245.10(a)(3).9 21 Butt, of course, agrees. 
country in 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.

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1 Although the parties appear to be in agreement on the

2 question of statutory interpretation -- i.e. that Butt may seek

3 adjustment of status on the basis of an employment-based

4 immigrant visa even though he was grandfathered on the basis of

5 a section 204 petition for classification -- we think, without

6 expressing any views whatsoever on the merits, that we would

7 benefit from the BIA’s views on the issue. 8 C.F.R. § 245.10(i)

8 provides that

9 The denial, withdrawal, or revocation of the approval of

10 a qualifying immigrant visa petition, or application for

11 labor certification, that was properly filed on or

12 before April 30, 2001, and that was approvable when

13 filed, will not preclude its grandfathered alien

14 (including the grandfathered alien’s family members)

15 from seeking adjustment of status under section 245(i)

16 of the Act on the basis of another approved visa

17 petition, a diversity visa, or any other ground for

18 adjustment of status under the Act, as appropriate.

19

20 8 C.F.R. § 245.10(i) (emphasis supplied); see also 8 C.F.R. §

21 245.10(a)(3) (stating that to preserve grandfathered status, an

22 alien whose properly filed visa petition was denied must be

23 “otherwise eligible to file an application for adjustment of

24 status under section 245(i) of the [INA]”). In our opinion,

25 these provisions do not unambiguously compel the interpretation
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1 favored by the parties. To be sure, there is nothing in the

2 statutory or regulatory provisions in issue that explicitly

3 requires that the immigrant visa on which basis the Attorney

4 General adjusts an alien’s status be based on the application or

5 petition through which the alien was grandfathered. Furthermore,

6 the USCIS Memorandum, see supra pages 9-10 & nn.6-7, arguably

7 supports the interpretation propounded by both parties, namely

8 that Butt may seek adjustment of status on the basis of an

9 employment-based immigrant visa even though he was grandfathered

10 on the basis of a section 204 petition for classification. But

11 the statutory and regulatory provisions also do not foreclose

12 other interpretations, viz. that the alien must be grandfathered

13 and have his status adjusted on the same basis or that an alien

14 may be grandfathered and have his status adjusted on different

15 bases only if he can show changed circumstances, see 8 C.F.R. §

16 245.10(a)(3) (providing that “[a] visa petition that was properly

17 filed on or before April 30, 2001, and was approvable when filed,

18 but was later withdrawn, denied, or revoked due to circumstances

19 that have arisen after the time of filing, will preserve the

20 alien beneficiary’s grandfathered status if the alien is

21 otherwise eligible to file an application for adjustment of

22 status under section 245(i) of the Act” (emphasis added)). 

23 We therefore remand the case to the BIA to consider, in the

24 first instance, whether, if Butt is grandfathered on the basis of
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1 the section 204 petition for classification, his status may be

2 adjusted on the basis of an employment-based immigrant visa. 

3

4

5 III. CONCLUSION

6 Ambiguities such as these in a complex statutory scheme are

7 best addressed, in the first instance, by the expert agency

8 charged with administering it. See generally Chevron, U.S.A.,

9 Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45

10 (1984). We therefore grant the petition for review, vacate the

11 BIA’s decision, and remand the case to the BIA to consider the

12 various issues discussed above. This panel retains jurisdiction

13 to rule upon the instant petition and decide the issues on appeal

14 following the disposition of the remand. See Ci Pan v. United

15 States Att’y Gen., 449 F.3d 408, 415 (2d Cir. 2006) (per curiam)

16 (citing United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.

17 1994)).