PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YIGAL SUISA; LELACH OHAYON, 

Petitioners,

v.  No. 08-2343

ERIC H. HOLDER, JR., Attorney

General,

Respondent. 

On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: May 12, 2010

Decided: June 30, 2010

Before NIEMEYER, DAVIS, and KEENAN,

Circuit Judges.

Petition for review denied by published opinion. Judge

Keenan wrote the opinion, in which Judge Niemeyer and

Judge Davis joined.

COUNSEL

ARGUED: Ronald Darwin Richey, Rockville, Maryland, for

Petitioners. Russell John Verby, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Tony West, Assistant Attorney
General, Civil Division, Barry J. Pettinato, Assistant Director,

Office of Immigration Litigation, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

KEENAN, Circuit Judge:

Yigal Suisa and his wife, Lelach Ohayon, are citizens of

Israel. They petition for review of a decision by the Board of

Immigration Appeals (the Board) pretermitting consideration

of their applications for adjustment of immigration status

under § 245(i) of the Immigration and Nationality Act (INA),

8 U.S.C. § 1255(i).1 Finding no error, we deny the petition for

review.

I.

Suisa and Ohayon originally entered the United States on

visas as nonimmigrant visitors. Suisa’s year of entry was

1997, and Ohayon entered this country in 2000. In July 2006,

the Department of Homeland Security initiated a removal proceeding against them. In the removal proceeding, Suisa and

Ohayon conceded that they had stayed in the United States

beyond the temporary period authorized by their visas.

Under the established procedure for adjustment of immigration status, certain nonimmigrant aliens may become lawful permanent residents without having to leave the country to

apply for an immigrant visa. See INS v. Bagamasbad, 429

U.S. 24, 25 n.* (1976) (per curiam); Lee v. U.S. Citizenship

1

In the immigration context, the term "pretermit" is used when an alien

is found ineligible to apply for some form of statutory relief. See

Gonzales-Balderas v. Holder, 597 F.3d 869, 870 (7th Cir. 2010); Singh v.

Gonzales, 468 F.3d 135, 136 n.1 (2d Cir. 2006). 

2 SUISA v. HOLDER
& Immigration Servs., 592 F.3d 612, 614 (4th Cir. 2010)

(describing the legislative history of 8 U.S.C. § 1255(i)). The

failure to maintain a lawful presence in the country ordinarily

would render Suisa and Ohayon ineligible for an adjustment

of immigration status. See 8 U.S.C. § 1255(c). Suisa and

Ohayon (collectively, Suisa) argued in their removal proceeding, however, that despite their current unlawful presence in

this country, the provisions of 8 U.S.C. § 1255(i) nonetheless

permitted them to apply for adjustment of status.2

A.

Congress enacted § 1255(i) in 1994, creating an exception

to the general rule that use of the adjustment-of-status mechanism is limited to those lawfully present in the country. See

Lee, 592 F.3d at 614. Congress intended that this provision be

temporary and, thus, § 1255(i) included a "sunset" provision

that required an alien to apply for adjustment of status

between October 1, 1994 and October 1, 1997. See 1995

Appropriations Act, Pub. L. No. 103-317, § 506(b), (c), 108

Stat. 1724, 1765-66 (effective Oct. 1, 1994); Lee, 592 F.3d at

614-15. When that "sunset" provision expired, Congress

added to § 1255(i) a "grandfather" clause that permitted aliens

to continue to apply for adjustment of status under § 1255(i)

if they were the beneficiaries of a visa petition or a labor certification application filed on or before January 14, 1998. See

1998 Appropriations Act, Public Law 105-119, § 111(b), 111

Stat. 2440, 2458 (1997); Lee, 592 F.3d at 615. In 2000, Congress extended the sunset date for a final time to April 30, 2001.3

2Section 1255(i) permits the "principal alien" and "a spouse or child" of

that alien to apply for adjustment of status. Suisa is the "principal alien"

in this case. Ohayon’s eligibility under § 1255(i) is derivative of his. For

this reason, we will refer to the petitioners collectively as "Suisa." 

3

In 2000, Congress added other requirements that are not at issue in this

case. The alien must pay a $1,000 penalty in addition to the standard processing fees associated with an adjustment of status. The alien must be

physically present in the United States and have been physically present

on December 21, 2000. See 8 U.S.C. § 1255(i)(1)(A-C). 

SUISA v. HOLDER 3
See 2001 Appropriations Act, Pub. L. 106-554,

§ 1502(a)(1)(B), 114 Stat. 2763, 2763A-324; Lee, 592 F.3d at

615.

When Suisa sought to apply for adjustment of his immigration status in 2006, the language of § 1255(i) provided, in relevant part, that

(1) [n]otwithstanding the provisions of subsections

(a) and (c) of this section, an alien physically present

in the United States—

(A) who—

(i) entered the United States without

inspection; or

(ii) is within one of the classes enumerated in subsection (c) of this section;

(B) who is the beneficiary . . . of—

(i) [an immigrant visa petition] under

section 204 [8 U.S.C. § 1154] that was filed

with the Attorney General on or before

April 30, 2001; or

(ii) an application for a labor certification

under § 212(a)(5)(A) [8 U.S.C.

§ 1182(a)(5)(A)] that was filed pursuant to

the regulations of the Secretary of Labor on

or before such date;

. . .

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully

admitted for permanent residence. 

4 SUISA v. HOLDER
8 U.S.C. § 1255(i)(1). Under this enactment of § 1255(i),

aliens who can establish that they are "grandfathered" may be

entitled to apply for an adjustment of status subject to the

ordinary eligibility requirements for an adjustment.4See Lee,

592 F.3d at 615-16.

B.

As we have noted, Suisa concedes that he is present in this

country unlawfully. Thus, in order to apply for an adjustment

of status, he must demonstrate that he is grandfathered under

the provisions § 1255(i). To do so, he relies solely on the

labor certification clause, § 1255(i)(1)(B)(ii), and the following relevant facts.

In 2003, ABC Scholars Day Care Center (Scholars) offered

Yigal Suisa a position as a secretary. Scholars previously had

obtained an approved Labor Certification for the position on

behalf of another alien, Vayal Pramod. That Certification was

approved by the Department of Labor in 1999. Under the

practices of the Department of Labor in 2003, a sponsoring

employer was permitted to substitute a different prospective

worker than the one originally named on the Labor Certifica4To be eligible for an adjustment of status, an alien must demonstrate

that (1) "the alien is eligible to receive an immigrant visa and is admissible

to the United States for permanent residence," and (2) "an immigrant visa

is immediately available to the alien at the time the [§ 1255(i)] application

is filed." 8 U.S.C. § 1255(a), (i)(2). In the case of an application for adjustment of status based on employment, aliens must demonstrate that they are

eligible for an employment-based visa and that a visa is immediately

available. See Lee, 592 F.3d at 616; Lendo v. Gonzales, 493 F.3d 439, 442

(4th Cir. 2007). To do so, a prospective employer must file on behalf of

the alien an application for a labor certification. Lee, 592 F.3d at 616. If

the Department of Labor issues the certification, the prospective employer

then submits a petition to the U.S. Citizenship and Immigration Services

for an immigrant work visa. If the alien is eligible for grandfathering

under § 1255(i), he can then apply to adjust his immigration status. See 8

U.S.C. § 1255(i); 8 C.F.R. § 204.5(n); Lee, 592 F.3d at 616. 

SUISA v. HOLDER 5
tion.5

See 20 C.F.R. § 656.30(c)(2). When Scholars offered

the job to Yigal Suisa in 2003, Scholars filed with the Department of Labor an "Application for Alien Employment Certification" naming Yigal Suisa as beneficiary of the previouslyapproved Certification.

The immigration judge issued a ruling, which the Board

upheld, that Yigal Suisa’s 2003 substitution date was a disqualifying fact under 8 C.F.R. § 1245.10(j), a regulation

adopted by the Attorney General to implement § 1255(i) of

the INA. This regulation provides that "[a]n alien who was

substituted for the previous beneficiary of the application for

the labor certification after April 30, 2001, will not be considered to be a grandfathered alien." 8 C.F.R. § 1245.10(j).

Applying this language to the circumstances of Yigal Suisa’s

substitution, the immigration judge and the Board concluded

that Suisa is not a "grandfathered alien" because he was substituted on the application for labor certification after April

30, 2001. The immigration judge pretermitted consideration

of the applications for adjustment of status, and the Board

affirmed that decision, dismissing Suisa’s appeal.

II.

On appeal to this Court, Suisa argues that 8 C.F.R.

§ 1245.10(j) is invalid because it conflicts with § 1255(i).

Suisa contends that § 1255(i) is a grandfather provision that

plainly applies to aliens like Suisa, who are the substituted

beneficiaries of labor certifications filed on or before April

30, 2001.

In support of this construction of § 1255(i), Suisa relies on

our decision in William v. Gonzales, 499 F.3d 329 (4th Cir.

5The Secretary of Labor stopped the practice of Labor Certification substitution in 2007. See 20 C.F.R. § 656.11(a) (2009). The new rule, however, does not affect substitutions approved by the Department of Labor

before the effective date of July 16, 2007. 

6 SUISA v. HOLDER
2007). In William, we addressed § 240(c)(7)(A) of the INA,

8 U.S.C. § 1229a(c)(7)(A), which permits "[a]n alien" to file

one motion to reopen a removal proceeding. William challenged an implementing regulation that imposed a bar on

motions to reopen filed by aliens who have already departed

the country. William argued that the regulation conflicted

with § 1229a(c)(7)(A), which he asserted plainly addressed

the right of all aliens, whether living inside the country or out,

to file motions to reopen. William, 499 F.3d at 331-32. The

government argued that the statute was silent regarding postdeparture motions and, thus, left a gap that appropriately was

filled by the regulation. Id. at 332.

We agreed with William, and held that the statutory language clearly permitted the filing of motions to reopen by

aliens living outside the country because such individuals are

a subset of all aliens, as that term was used in

§ 1229a(c)(7)(A). Id. We observed that Congress, in enacting

a different section of the same statute, expressly had included

a requirement of physical presence within this country for

alien applicants. Id. at 333. We presumed that Congress acted

purposefully and intentionally by omitting that same requirement from § 1229a(c)(7)(A). Id.

Suisa argues that like the term "alien," the term "beneficiary" includes two classes of individuals who benefit from

labor certifications, namely, direct beneficiaries and substituted beneficiaries. Suisa notes that when Congress enacted 8

U.S.C. § 1255(i), Congress was aware of the practice of the

Department of Labor permitting the substitution of beneficiaries in applications for labor certification. Suisa contends that

if Congress had intended to exclude substituted beneficiaries

from eligibility under § 1255(i), Congress would have done so

expressly.

Under Suisa’s interpretation, the determinative fact for

deciding a substitute beneficiary’s eligibility for grandfathering is the date on which the original application for labor cerSUISA v. HOLDER 7
tification was filed. According to Suisa, if that application

was filed on or before April 30, 2001, an individual substituted as a beneficiary after April 30, 2001 would qualify as a

"grandfathered alien." Thus, Suisa argues that 8 C.F.R.

§ 1245.10(j) is invalid because the regulation excludes from

eligibility under § 1255(i) certain substituted beneficiaries

such as Suisa whom Congress plainly intended to grandfather,

based on their substitution after April 30, 2001, as the beneficiaries of labor certifications originally filed on or before that

date.

III.

Because Suisa challenges an agency’s regulation, we

employ the two-step analysis prescribed by the Supreme

Court in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984).

A. Chevron Step One

Under the Chevron analysis, we first consider whether

"Congress has directly spoken to the precise question" at

issue. Id. at 842-43. If Congress’ intent is clear, as Suisa contends, then our inquiry is at an end because an agency "must

give effect to the unambiguously stated intent of Congress."

Id. at 843. However, if the statute at issue is silent or ambiguous with respect to the precise issue, then we must decide

whether the agency’s interpretation of the statute is reasonable

and, thus, entitled to deference. Id.

Under basic principles of statutory interpretation, we begin

our analysis by considering the relevant language of

§ 1255(i), which grandfathers aliens who are "the beneficiary

. . . of [(i) a visa petition] or (ii) an application for a labor certification . . . that was filed . . . on or before [April 30, 2001]."

8 U.S.C. § 1255(i)(1)(B). Section 1255(i) plainly does not use

the term "substituted beneficiary." Rather, in this statute, Congress referred only to "the beneficiary" of two categories of

8 SUISA v. HOLDER
legal documents, visa petitions filed under § 204 of the INA,

8 U.S.C. § 1154, and applications for labor certification filed

under § 212(a)(5)(A) of the INA, 8 U.S.C. § 1182(a)(5)(A).

In the case of a visa petition filed under § 1154, Congress’

intent is clear. Visa petitions submitted under § 1154 have

one, and only one, adult beneficiary. Thus, when Congress

enacted § 1255(i), Congress plainly contemplated that only a

valid, direct beneficiary of a visa petition be permitted to

obtain grandfathered status under § 1255(i).

In the case of an application for labor certification, however, Congress’ intent is decidedly less clear. Because the

Department of Labor has permitted employers to "substitute"

one beneficiary for another, there can be several beneficiaries

of a labor certification over a period of time. As a result, the

term "the beneficiary," as used in § 1255(i), could have more

than one meaning.

On the one hand, the term "the beneficiary" in § 1255(i)

could describe the currently-named alien beneficiary of an

application for labor certification. That individual might be a

direct beneficiary of the labor certification, if no substitutions

have been made, or a substituted beneficiary for an originallynamed alien. Conversely, this term "the beneficiary" could

refer only to the initial beneficiary named on a labor certification. Under this second interpretation, § 1255(i) would eliminate eligibility for all substituted beneficiaries of a labor

certification. Finally, under a third possible interpretation, the

term "the beneficiary" could refer to a limited subset of substituted beneficiaries who were substituted as beneficiaries of

labor certifications prior to the April 30, 2001 sunset date that

Congress provided in § 1255(i).

In the same sentence of § 1255(i), therefore, Congress used

the term "the beneficiary" in relation to visa petitions, which

demonstrably cannot have "substituted" beneficiaries, and in

relation to labor certification applications, which manifestly

SUISA v. HOLDER 9
can have "substituted" beneficiaries. This juxtaposition

creates an ambiguity regarding Congress’ intent that did not

arise in William.

We were able to ascertain Congress’ intent in William,

based on the principle that when Congress includes particular

language in one part of a statute but omits that language elsewhere in the same enactment, it generally is presumed that

Congress acted intentionally and purposefully in the inclusion

or exclusion of that language. William, 499 F.3d at 332; see

INS v. Cardoza-Fonseca, 480 U.S. 431, 432 (1987). Here,

however, we cannot draw conclusions about Congress’ intent

by comparing § 1255(i) to another subsection of § 1255,

because the term "substituted beneficiary" does not appear

anywhere in the statute. Thus, the dispositive consideration in

William, Congress’ use of particular language in one section

of a statute combined with its omission of that language elsewhere in the same statute, is inapposite here. In the absence

of such distinguishing language in § 1255, we hold that Congress did not express clearly its intent in § 1255(i) regarding

the application of that statutory provision to aliens substituted

on applications for labor certification.

B. Chevron Step Two

In the absence of a clear statement of Congress’ intent, we

proceed to step two of the Chevron analysis. We must determine whether the meaning that the Attorney General ascribed

to § 1255(i), as found in the text of 8 C.F.R. § 1245.10(j), is

a permissible one. Chevron, 467 U.S. at 844; see William, 499

F.3d at 332. Because Congress expressly delegated to the

Attorney General the authority to establish "such regulations

as [are] necessary for carrying out [the INA]," 8 U.S.C.

§ 1103(g)(2), the challenged regulation must be "given controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844.

Further, the Supreme Court has instructed that deference to

the Executive Branch is especially appropriate in the immi10 SUISA v. HOLDER
gration context because officials "‘exercise especially sensitive political functions that implicate questions of foreign

relations.’" INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)

(quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).

Guided by these principles, we hold that 8 C.F.R.

§ 1245.10(j) is a permissible construction of § 1255(i). We

presume that Congress acted purposefully when it included in

§ 1255(i) a deadline by which aliens must have filed a visa

petition or application for labor certification. The imposition

of a sunset date plainly demonstrates that Congress intended

that the benefit of § 1255(i) be temporary and apply only to

a discrete group of aliens whose applications were pending on

April 30, 2001. That intent would be frustrated if an alien substituted many years later as the beneficiary of an application

for labor certification could nonetheless take advantage of the

expired provision for adjustment of status.6 Thus, confronted

with the question whether § 1255(i) applies to grandfather the

substituted beneficiaries of labor certifications, the Attorney

General reasonably determined that only beneficiaries substituted before April 30, 2001, the date selected by Congress,

may be eligible to apply for adjustment of status under

§ 1255(i).7 Accordingly, we hold that 8 C.F.R. § 1245.10(j) is

a valid exercise of the Attorney General’s rulemaking authority.

6Suisa argues that because he is the beneficiary an I-140 visa petition

that has a "priority date" of May 1999, he should benefit from that date

for purposes of his labor certification application in determining his eligibility for grandfathering under § 1255(i)(1)(B)(ii). Although Suisa may

benefit from the May 1999 date for other purposes related to his immigration status, that fact does not affect our resolution of the distinct question

whether Congress, in choosing the language of § 1255(i), intended to

"grandfather" aliens who did not become beneficiaries of labor certifications until after April 30, 2001. 

7Suisa relies on the canon of statutory construction providing that any

ambiguities in the INA should be resolved in favor of the alien. However,

we need not resort to this canon because the Attorney General has offered

a reasonable construction of § 1255(i). See Cervantes v. Holder, 597 F.3d

229, 237 n.9 (4th Cir. 2010). 

SUISA v. HOLDER 11
IV.

Having upheld 8 C.F.R. § 1245.10(j), we conclude that the

Board properly applied the regulation to deny Suisa’s eligibility to apply for an adjustment of status under § 1255(i). For

the foregoing reasons, we deny the petition for review.

PETITION FOR REVIEW DENIED

12 SUISA v. HOLDER