FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELIX DINGLASAN BLANCO, JR., 

Petitioner, No. 05-72159

v. Agency No.  A078-031-594 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 4, 2009—Pasadena, California

Filed July 15, 2009

Before: John T. Noonan, Diarmuid F. O’Scannlain, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

8963
COUNSEL

Russell L. Marshak, Popkin, Shamir & Golan, Los Angeles,

California, for the petitioner.

Lauren Fascett and Song E. Park, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

BLANCO v. HOLDER 8965
OPINION

GRABER, Circuit Judge:

Is an alien’s otherwise complete and timely application for

adjustment of status properly rejected as untimely for the sole

reason that his lawyer’s accompanying check for the proper

amount of the filing fee was inadvertently unsigned? We

answer that question “no” and, therefore, grant the petition for

review.1

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Felix Dinglasan Blanco, Jr., is a native and citizen of the Philippines. He entered the United States on January 24, 1997, as a nonimmigrant crewman with authorization

to remain for one month. He overstayed and, approximately

four years later, married a lawful permanent resident.

Petitioner’s wife submitted a Form I-130, Petition for Alien

Relative, on his behalf on April 27, 2001, with the Immigration and Naturalization Service (“INS”).2

 The form was fully

1Petitioner raised three other issues in his petition, which we address

here: First, Petitioner is correct that the Board of Immigration Appeals

(“BIA”) erred in holding that he is removable under 8 U.S.C.

§ 1227(a)(1)(A), but that error is harmless because Petitioner conceded

removability on other grounds. See Larita-Martinez v. INS, 220 F.3d 1092,

1095 (9th Cir. 2000) (holding that an error that does not prejudice a petitioner’s case is a harmless error). Second, the BIA did not abuse its discretion in refusing to grant Petitioner a continuance because there was no

evidence of the government’s alleged stipulation that Petitioner qualified

as a “grandfathered alien” under 8 U.S.C. § 1255(i) and the immigration

judge gave the parties time to conference about the issue. See Barapind

v. Reno, 225 F.3d 1100, 1113 (9th Cir. 2000) (holding that we review for

abuse of discretion). Third, the BIA acted properly in permitting singlemember review of Petitioner’s appeal, 8 C.F.R. § 1003.1(e), and in issuing

a brief decision, id. § 1003.1(e)(5). 

2The INS ceased to exist on March 1, 2003, when its functions were

transferred to the Department of Homeland Security. See Homeland

Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. We refer to

the agency as the INS because the hearings in this case took place before

the transfer. 

8966 BLANCO v. HOLDER
completed and signed; accompanying it were fully completed

and signed Biographic Data Form G-325, true copies of the

marriage certificate and the wife’s alien resident card, and a

check from Petitioner’s counsel for $110 made payable to the

INS as payment for the I-130 filing fee. Apparently by accident, the check was unsigned.

The INS received Petitioner’s application on April 29,

2001. Approximately four months later, the INS returned the

whole application package to Petitioner’s counsel, noting that

an unsigned check was not acceptable and requesting a signed

check or money order. Counsel immediately signed the check

that had been returned and resubmitted it, along with the

whole petition packet, to the INS. The INS received the petition for the second time, with the now-signed check, on September 4, 2001.

Petitioner’s wife became a naturalized citizen of the United

States in March 2002. She renewed her petition on his behalf

and, as the spouse of a citizen, Petitioner applied for adjustment of status under 8 U.S.C. § 1255(i).

The INS denied Petitioner’s application for adjustment of

status. The agency first noted that Petitioner was ineligible for

adjustment under 8 U.S.C. § 1255(a) because he had entered

the United States with a nonimmigrant crewman visa. The

agency then rejected the application under 8 U.S.C. § 1255(i)

because, in order to adjust under that section, the visa petition

on his behalf had to have been properly filed on or before

April 30, 2001. The INS ruled that Petitioner’s “initial visa

petition was not properly filed on or before” that date and was

“not approvable at the time of filing,” even though it had been

first received on April 29, 2001. Accordingly, the INS found

Petitioner ineligible for adjustment of status and denied his

application.

Thereafter, the INS commenced removal proceedings.

After a hearing at which Petitioner conceded removability, an

BLANCO v. HOLDER 8967
immigration judge found that Petitioner was ineligible to

adjust his status. On appeal, the Board of Immigration

Appeals agreed. The BIA held that Petitioner was ineligible

to adjust his status under 8 U.S.C. § 1255(i) because “he did

not submit a properly filed application on or before the April

30, 2001, sunset date of that provision”; the unsigned check

made the filing defective. Petitioner timely seeks our review.

DISCUSSION3

Title 8 U.S.C. § 1255(i) provides for adjustment of status

to that of an alien lawfully admitted for permanent residence

for certain aliens who are physically present in the United

States. Such an alien may apply for adjustment of status and

must remit with the application “a sum equalling $1,000 as of

the date of receipt of the application, but such sum shall not

be required from . . . an alien who is the spouse . . . of an individual who obtained . . . permanent resident status” under

specified statutory provisions. Because he was married to a

permanent resident, Petitioner was not required to pay $1,000

at the time of the application, but the INS charged a $110 filing fee to process the application. See 8 C.F.R. § 103.7

(authorizing the INS to charge a processing fee for formal

applications or petitions). 

Title 8 C.F.R. § 103.2(a)(7) states in relevant part:

Receipt Date — (i) General. An application or

petition received in a[n INS] office shall be stamped

3We review de novo questions of law in removal proceedings. MolinaEstrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). We give Skidmore

deference to a nonbinding agency interpretation only to the extent of its

thoroughness and overall persuasiveness. Morales-Garcia v. Holder, 567

F.3d 1058, 1061 (9th Cir. 2009); see also Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944). Here, the BIA held that Petitioner was ineligible for

an adjustment of status under 8 U.S.C. § 1255(i) without any statutory or

regulatory analysis. Because the BIA’s decision was neither thorough nor

persuasive, we do not defer to it. 

8968 BLANCO v. HOLDER
to show the time and date of actual receipt and,

unless otherwise specified in part 204 or part 245 or

part 245a of this chapter, shall be regarded as properly filed when so stamped, if it is signed and executed and the required filing fee is attached or a

waiver of the filing fee is granted. An application or

petition which is not properly signed or is submitted

with the wrong filing fee shall be rejected as improperly filed. Rejected applications and petitions, and

ones in which the check or other financial instrument

used to pay the filing fee is subsequently returned as

non-payable will not retain a filing date . . . .

(ii) Non-payment. If a check or other financial

instrument used to pay a filing fee is subsequently

returned as not payable, the remitter shall be notified and requested to pay the filing fee and associated service charge within 14 calendar days, without

extension. If the application or petition is pending

and these charges are not paid within 14 days, the

application or petition shall be rejected as improperly filed. If the application or petition was already

approved, and these charges are not paid, the

approval shall be automatically revoked because it

was improperly filed. If the application or petition

was already denied, revoked, or abandoned, that

decision will not be affected by the non-payment of

the filing or fingerprinting fee.

(Emphases added.) Further, 8 C.F.R. § 103.7(a)(2) provides in

relevant part:

A charge of $30.00 will be imposed if a check in

payment of a fee or any other matter is not honored

by the bank or financial institution on which it is

drawn. A receipt issued by a[n INS] officer for any

remittance shall not be binding upon the [INS] if the

remittance is found uncollectible. Furthermore, legal

BLANCO v. HOLDER 8969
and statutory deadlines will not be deemed to have

been met if payment is not made within 10 business

days after notification by the [INS] of the dishonored

check. 

(Emphasis added.)

[1] Those regulations direct that an application or petition

is properly filed when it is actually received, provided that the

application is signed and “the required filing fee” is attached.

Id. § 103.2(a)(7)(i). The regulations further provide that an

application or petition is to be rejected only if the application

is not properly signed or if “the wrong filing fee” is submitted. Id. The initial filing date will be retained unless the application is not properly signed, the wrong filing fee is

submitted, or the check or other financial instrument later is

returned as nonpayable. Id.

[2] No statute or regulation addresses the situation in which

a signed application is accompanied by an unsigned check for

the correct amount of the filing fee.4 The regulations provide

that an application that is submitted with the “wrong filing

fee” must be rejected. 8 C.F.R. § 103.2(a)(7)(i). Contrary to

the BIA’s conclusion, a check for an incorrect amount, however, is not the same as an unsigned check for the right

amount. A check for an incorrect amount can never result in

payment of the correct filing fee, whether or not the bank honors it. A check that is not signed, on the other hand, can result

in payment of the correct fee if the bank decides to honor it.

Arthur Winston & Jay Winston, Complete Guide to Credit

and Collection Law 298 (2d ed. 2000). 

4We need not and do not decide whether the result would be the same

for an alien who must, under 8 U.S.C. § 1255(i), remit with the application

“a sum equalling $1,000 as of the date of receipt of the application.” As

noted above, Petitioner is exempt from that fee; the processing fee charged

here is not a statutory requirement. 

8970 BLANCO v. HOLDER
A check that is unsigned may be deposited by the recipient

by endorsing on the reverse side of the check the payee’s signature and guaranteeing to the bank the signature of the maker

of the check. Id. Specifically,

[w]hen the check is presented to the maker’s bank,

the bank accepts the check and transfers the funds.

The maker who receives the debit on the bank statement will not contact the bank since he or she

believed the check was signed.

Id. The bank is not, of course, obligated to deposit an

unsigned check; rather, the bank may refuse to deposit a

check not properly signed because, if that check were fraudulent or unauthorized by the payer, the bank faces possible liability. 1 Henry J. Bailey & Richard B. Hagedorn, Brady on

Bank Checks § 16.06 (revised ed. 2000). But the bank may

honor the check. 

In accordance with these principles, at least one government agency accepts unsigned checks for processing. The

Internal Revenue Service sets forth in its Internal Revenue

Manual that remittances and tax returns containing “unsigned

checks can be submitted for processing.” Internal Revenue

Manual § 5.4.1.8.

5

[3] Thus, banks may and sometimes do accept unsigned

checks. So long as the bank accepts liability for an unsigned

check if the deposit turns out to be unauthorized, there is no

legal authority of which we are aware that prevents a bank

from accepting such a check. The bank assumes its own risk

in accepting the check; but, in the absence of a statutory or

regulatory directive, it is not the place of an agency to decide

for the bank whether or not to assume that risk.

5Petitioner brought the Internal Revenue Manual, and other evidence

pertaining to the potential validity of unsigned checks, to the attention of

the BIA. Therefore, there was evidence in the record that contradicted the

BIA’s conclusion that an unsigned check is per se invalid. 

BLANCO v. HOLDER 8971
[4] The INS could have presented Petitioner’s lawyer’s

unsigned check to the bank and allowed the bank to determine

whether or not to accept the payment. Indeed, the regulations

contemplate “grandfathering” the receipt date of a check that

is dishonored, and the applicant may have a grace period during which to make good on the check. 8 C.F.R. § 103.7(a)(2).

The regulation sets forth that the INS will charge a petitioner

who submits a nonpayable check and that statutory deadlines

“will not be deemed to have been met if payment is not made

within 10 business days after notification . . . of the dishonored check.” Id. Although the regulation requires the petitioner to pay within 10 business days (usually the equivalent

of 14 calendar days) in order to retain a deadline, it implicitly

tolerates some flexibility on the part of the agency. Thus, the

regulation demonstrates that the agency does not require

immediate payment in every case.

[5] To summarize, no regulation specified that the INS

must reject a signed application accompanied by an unsigned

check for the right amount of the fee, when all other aspects

of the application were complete and proper. A regulation, 8

C.F.R. § 103.2(a)(7), did specify that the INS must reject an

application that was “not properly signed” or that was accompanied by “the wrong filing fee.” In this case the BIA interpreted that regulation to encompass an unsigned check for the

right amount of the fee. But the regulation does not say that

and does not necessarily imply that. For that reason, the BIA

misinterpreted the regulation to cover this situation, so its

decision is contrary to law. Moreover, all the evidence in the

record, including procedures of the Internal Revenue Service,

shows that an unsigned check is not per se invalid. Accordingly, no reasonable adjudicator would find in accordance

with the BIA’s decision. See 8 U.S.C. § 1252(b)(4) (stating

standard of review).

In a similar case, the Federal Circuit held that the United

States Patent and Trademark Office (“USPTO”) was required

to file a patent application with an unsigned check on the date

8972 BLANCO v. HOLDER
that the agency first received it. Dubost v. U.S. Patent &

Trademark Office, 777 F.2d 1561 (Fed. Cir. 1985). The

USPTO’s decision to the contrary could not be sustained

because it “rested on faulty legal premises.” Id. at 1566. The

statute in Dubost was similar to the regulation here; it

required that the “application must be . . . accompanied by the

fee required by law.” 35 U.S.C. § 111; Dubost, 777 F.2d at

1565. Here, 8 C.F.R. § 103.2(a)(7)(i), on which the BIA

relied, requires that an application have “the required filing

fee . . . attached.” The Dubost court reasoned that a regulatory

provision allowing the USPTO to delay or cancel credit for

payment sent in forms other than certain listed forms suggested that unconditional payment with the application was

not absolutely required. 777 F.2d at 1565-66. Similarly, here,

the regulatory provisions for how to handle dishonored checks

—contemplating that deadlines could be met even with some

delay if payment was resubmitted—suggest that unconditional

payment with the application was not absolutely required.6

[6] By rejecting Petitioner’s application on the basis of an

unsigned check, the INS did not demonstrate “flexibility” in

enabling Petitioner to take advantage of the adjustment of status provision of 8 U.S.C. § 1255(i). Balam-Chuc, 547 F.3d at

1046. Petitioner was present in the United States on December 21, 2000, and he petitioned the Attorney General for an

immigration visa before April 30, 2001. His application con6This case is distinguishable from Balam-Chuc v. Mukasey, 547 F.3d

1044, 1046 (9th Cir. 2008), on the facts. There, the INS did not receive

the application until about six weeks after the statutory deadline, and we

held that equitable tolling did not apply to the statutory deadline promulgated in 8 U.S.C. § 1255. Balam-Chuc, 547 F.3d at 1046-51. By contrast,

here, the record shows without dispute that Petitioner’s counsel submitted

a full and complete application, including the proper amount for the filing

fee, on April 27, 2001, and that the INS received it on April 29, 2001—

before the statutory deadline. As discussed in the text, it is contrary to evidence Petitioner submitted in the record and to the implications of the

agency’s own regulations for the INS to consider an unsigned check per

se invalid. 

BLANCO v. HOLDER 8973
tained all the “necessary supporting documents” and included

the proper amount for the filing fee. Id. Rejecting Petitioner’s

application on the basis that an unsigned check is per se

invalid was contrary to the agency’s regulations and the facts

Petitioner brought to its attention. 

Petition GRANTED; REMANDED for further proceedings.

8974 BLANCO v. HOLDER