IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60538

SYED TALHA BOKHARI,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of

the Board of Immigration Appeals

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

On December 29, 2006, the Department of Homeland Security (“DHS”)

commenced removal proceedings against Syed Talha Bokhari, a native and

citizen of Pakistan who entered the United States as a nonimmigrant visitor.

Bokhari conceded his removability, but sought adjustment of his status from a

nonimmigrant worker to a permanent resident. The Immigration Judge (“IJ”)

determined that Bokhari was ineligible for adjustment of status, because he had

failed to maintain lawful status in this country for more than 180 days. Bokhari

appealed to the Board of Immigration Appeals (“BIA”), and the BIA affirmed the

IJ. Bokhari now petitions this court for a review of the BIA’s decision. Bokhari

argues that, because he was authorized to work in the United States, it

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2010

Lyle W. Cayce

Clerk

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No. 09-60538

necessarily follows that he was authorized to be in the United States, and he

thus was not in unlawful status for more than 180 days. He therefore contends

that he is eligible for an adjustment of status, and that the BIA and IJ erred by

not reaching the merits of his application to adjust to permanent resident status.

We disagree. Finding no error, we DENY Bokhari’s petition for review of the

BIA’s decision.

I.

Bokhari entered the United States on April 9, 2001, as a B-2

nonimmigrant visitor. His B-2 status was twice extended, rendering his

presence lawful in the United States until October 9, 2002. His status changed

on June 11, 2002, to a L-1A nonimmigrant worker for Syed T. Enterprises Inc.

(“Syed”). Syed is a subsidiary of Mir Motors, the Pakistan-based company owned

by Bokhari. Bokhari’s counsel stated that, at the time of oral argument, Bokhari

was Syed’s sole shareholder, and sole employee.

On June 9, 2003, one day before Bokhari’s approved L-1A status expired,

Syed, on behalf of Bokhari, filed form I-129, seeking an extension of Bokhari’s

L-1A status. The I-129 application was denied on March 19, 2004. On April 19,

Syed appealed, but the appeal was denied on September 2, 2005.

In the meantime, on June 8, 2004, Syed had filed an I-140 form, seeking

permanent residence for Bokhari. Simultaneously, Bokhari, acting individually,

filed an I-485 application for adjustment to permanent resident status. The I140 application for permanent resident status was approved more than a year

later, on July 11, 2005. Bokhari’s I-485 application, however, was later denied

on September 20, because he had failed, for more than 180 days before filing the

application, to maintain lawful immigration status. DHS commenced removal

proceedings against Bokhari on December 29, 2006.

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II.

In the proceedings below, Bokhari conceded removability, but claimed

instead that he was eligible to have his I-485 application renewed. On August

17, 2007, the IJ issued her decision, finding that Bokhari’s lawful immigration

status ended on June 10, 2003, when his one-year term of approved L-1A status

ended. She also found that Bokhari had not filed his application for adjustment

of status until June 8, 2004, nearly one year after his lawful immigration status

expired. Accordingly, the IJ pretermitted addressing his application for

adjustment for status. Bokhari appealed the IJ’s decision to the BIA.

The BIA upheld the IJ’s decision on June 17, 2009. Bokhari argued that

the employment authorization accompanying Syed’s I-129 application granted

him lawful immigration status. The government, while conceding that Bokhari

had proper authorization to work, argued that work authorization does not itself

also provide or determine lawful immigration status. The BIA agreed with the

government’s position. The BIA further concluded that lawful status derives

from a grant or extension of status, and not from a pending application. Bokhari

filed this petition for review.

III.

Bokhari contends the BIA erred in upholding the IJ’s decision to pretermit

deciding Bokhari’s application for adjustment of status. He argues that the BIA

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erred in its interpretation and application of the relevant regulations and

statutes. We have jurisdiction over these claims, as they present “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see Mai v. Gonzales, 473

F.3d 162, 164 (5th Cir. 2006). When considering a petition for review, we review

We do not have jurisdiction to review DHS’s discretionary decision to deny Bokhari’s

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I-485 application to adjust status. See 8 U.S.C. § 1252(a)(2)(B)(I).

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the BIA’s legal conclusions de novo. Singh v. Gonzales, 436 F.3d 484, 487 (5th

Cir. 2006) (footnotes and citations omitted).

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Given the narrow nature of the question presented, it is worthwhile to

emphasize several issues on which the parties agree: Bokhari is removable; was

originally granted lawful admission to the country as a nonimmigrant visitor,

and remained lawfully present as a nonimmigrant worker until June 10, 2003;

and was authorized to work for Syed after June 10, for up to 240 days, during

the pendency of Syed’s I-129 application. The sole issue before us, therefore, is

whether Bokhari was in unlawful immigration status for more than 180 days,

and is thus ineligible to have his status adjusted. In making this determination,

the key question is whether Syed’s I-129 application for an extension of

Bokhari’s status gave him lawful immigration status.

Bokhari, relying heavily on El Badrawi v. DHS, argues that the automatic

employment authorization that, under 8 C.F.R. § 274a.12(b)(20), accompanied

his employer’s, i.e., Syed’s, I-129 application seeking an extension of his

nonimmigrant status, logically gave him lawful immigration status. See 579 F.

Supp. 2d 249, 276-77 (D. Conn. 2008) (holding that employment authorization

under 8 C.F.R. § 274a.12(b)(20) results in lawful status). He thus contends that

his status was lawful until March 19, 2004, when DHS denied the I-129

extension request. Thus, he contends, when he sought adjustment of his status

on June 4, 2004, he had not been in unlawful status for more than 180 days,

qualifying him as eligible for the status adjustment under 8 U.S.C. §

1255(k)(2)(a).

The parties dispute whether the BIA’s interpretation was reasonable, and thus 2

entitled to Chevron deference. We do not decide this issue, as the statute is unambiguous, and

Chevron applies only when a statute is ambiguous. See Singh, 436 F.3d at 487. Similarly, we

do not determine whether Bokhari is entitled to lenity, since lenity is applied only when there

are “lingering ambiguities” to be resolved. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

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DHS argues that Bokhari is ineligible to have his status adjusted because

he failed to maintain lawful status in this country from June 10, 2003, until

June 8, 2004, a period well in excess of 180 days. See 8 U.S.C. § 1255(k)(2)(a).

DHS acknowledges that, during this period of time, Bokhari was permitted to

work for Syed under 8 C.F.R. § 274a.12(b)(20), but contends that employment

authorization is not a grant of, nor is tantamount to, lawful immigration status

for the authorized employee; each is a separate and independent consideration.

DHS further contends that In re Teberen, 15 I. & N. Dec. 689 (BIA 1976), made

clear that an extension application, standing alone, does not confer lawful status.

Although it is true that Bokhari meets the three statutory eligibility

requirements of 8 U.S.C. § 1255(a), that is not the end of the analysis. Section

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1255(c)(2) further provides that Bokhari is not entitled to the adjustment of his

status if he was “in unlawful immigration status on the date of filing the

application for adjustment of status or . . . failed (other than through no fault of

his own or for technical reasons) to maintain continuously a lawful status since

entry into the United States.” Section 1255(c)(2)’s requirements are excused,

however, if Bokhari, following his “lawful admission has not, for an aggregate

period exceeding 180 days failed to maintain, continuously, a lawful status.” 8

U.S.C. § 1255(k)(2)(a).

“Lawful immigration status,” as the term is used in § 1255(c)(2), is granted

nonimmigrants “whose initial period of admission has not expired or whose

nonimmigrant status has been extended. . . .” 8 C.F.R. § 1245.1(d)(1)(ii). Bokhari

was granted L-1A status on June 11, 2002, allowing him to work temporarily in

the United States for Syed (a legally related entity of Mir Motors, the

An alien is statutorily eligible for relief from removal through adjustment of status 3

if “(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive

an immigrant visa and is admissible to the United States for permanent residence, and (3) an

immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C.

§ 1255(a).

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international company Bokhari owns), “in a capacity that [was] managerial [or]

executive.” 8 U.S.C. § 1101(a)(15)(L). Thus, he had lawful immigration status

through June 10, 2003. See 8 C.F.R. § 1245.1(d)(1)(ii). We must decide,

however, whether he failed to maintain his lawful status for more than 180 days

thereafter; such failure would make him ineligible for the I-145 permanent

residence adjustment he sought on June 8, 2004. See 8 U.S.C. §§ 1255(c)(2),

(k)(2)(a).

As we have said, it is undisputed that, while waiting for the adjudication

of Syed’s I-129 extension application, Bokhari was automatically authorized to

continue his employment with Syed for “a period not to exceed 240 days

beginning on the date of the expiration of [his] authorized period of stay.” See

8 C.F.R. § 274a.12(b)(20). The regulation further provides that such

authorization “automatically terminate[s] upon notification of” DHS’s decision

denying the request, which, in this case, occurred on March 19, 2004, cutting

short the 240-day period. See id. The sole focus of our review, however, is

whether Bokhari’s employment authorization, which he received automatically

upon the filing of Syed’s I-129 application for the extension of his status, gave

him legal immigration status, as defined in 8 C.F.R. § 1245.1(d)(1)(ii).

As DHS asserts, employment authorization and lawful immigration status

are two separate considerations, presenting issues independent of each other.

We have recognized this distinction in the context of a direct criminal appeal.

United States v. Flores, 404 F.3d 320, 327-28 (5th Cir. 2005). In Flores, we held

“an alien may be temporarily granted a stay of removal and be permitted to work

during that stay, but still be considered illegal[]. . . .” Id. (internal citations and

quotations omitted). Although Flores is not precisely our case, we find it

persuasive. Moreover, under In re Teberen, a grant of an extension request

confers lawful status, not the filing of the request. 15 I. & N. Dec. 689, 690. El

Badrawi found In re Teberen inapplicable because the latter “was decided in

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1976—15 years before the INS adopted” 8 C.F.R. § 274a.12(b)(20). 579 F. Supp.

2d at 276-77. We, however, see no basis to refrain from applying In re Teberen.

Section 274a.12(b)(20), by its plain language, addresses employment

authorization only, and thus does not address an employee’s immigration status.

IV.

We thus hold that the employment authorization provided to Bokhari

under 8 C.F.R. § 274a.12(b)(20) did not provide him with lawful immigration

status. We further hold Bokhari was in unlawful immigration status, as defined

in 8 C.F.R. § 1245.1(d)(1)(ii), after June 10, 2003, and he unlawfully remained

in the United States for more than 180 days thereafter. We therefore hold that

because Bokhari failed to maintain lawful status, he was ineligible to have his

status adjusted under 8 U.S.C. §§ 1255(c)(2), (k)(2)(a). Bokhari’s petition for

review of the order of the BIA pretermitting the question of Bokhari’s application

and ordering him to depart the United States is therefore

DENIED.

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