FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL VALENCIA,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 13-70414

Agency No.

A088-199-561

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 21, 2015—Pasadena, California

Filed February 2, 2016

Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,

Circuit Judges and Michael A. Ponsor,* Senior District

Judge.

Opinion by Judge Nguyen

 

* The Honorable Michael A. Ponsor, Senior District Judge for the U.S.

District Court for Massachusetts, sitting by designation.
2 VALENCIA V. LYNCH

SUMMARY**

Immigration

The panel denied Manuel Valencia’s petition for review

of the Board of Immigration Appeals’ denial of adjustment of

status under a regulation that precludes an alien substituted

for the previous beneficiary of a labor certification

application after a sunset date from claiming to be a

grandfathered alien.

The panel held that the Attorney General’s regulation,

8 C.F.R. § 1245.10(j), is entitled to deference under Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). The panel held that 8 U.S.C. § 1255(i),

the statute that allows a beneficiary of a labor certification

application filed on or before April 30, 2001, to apply for

adjustment, is ambiguous because it uses only the general

term “beneficiaries,” not the more specific term “substitute

beneficiaries.” The panel further held that it was permissible

for the Attorney General to interpret the statute to preclude

beneficiaries substituted after the sunset date from obtaining

grandfathered status.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VALENCIA V. LYNCH 3

COUNSEL

Larry Liem Doan (argued), Law Office of Larry Liem Doan,

Los Angeles, California, for Petitioner.

Ann M. Welhaf (argued), Trial Attorney; Tony West,

Assistant Attorney General; Stephen J. Flynn, Assistant

Director; Office of Immigration Litigation, United States

Department of Justice, Washington, D.C., for Respondent.

OPINION

NGUYEN, Circuit Judge:

Petitioner Manuel Valencia, a citizen of Mexico, seeks

adjustment of his immigration status under the

“grandfathering” exception for beneficiaries of laborcertification applications filed before April 30, 2001. See

8 U.S.C. § 1255(i)(1)(B)(ii). The Immigration Judge and

Board of Immigration Appeals denied Valencia’s application

for adjustment of status, citing a regulation promulgated by

the AttorneyGeneral that says, “An 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). Valencia, who

undisputedly falls within the scope of that regulation,

challenges its validity. Because the regulation is a reasonable

interpretation of an ambiguous statute and entitled to

deference, the petition is denied.
4 VALENCIA V. LYNCH

BACKGROUND

Valencia entered the United States in June 2006 on a B-2

tourist visa that expired later that year. About five years

earlier, on April 26, 2001, Lawrence Equipment, Inc., a

California corporation, had filed an application for labor

certification, which was approved by the United States

Department of Labor. This application, however, did not

name Valencia as a beneficiary. At some point after April 30,

2001, Lawrence Equipment obtained approval from the

Department of Labor to substitute Valencia as the beneficiary

of its approved labor certification.1

In January 2007, shortly after Valencia’s tourist visa

expired, Lawrence Equipment filed with the United States

Citizenship and Immigration Services (“USCIS”) an

“Immigrant Petition for Alien Worker” naming Valencia as

the beneficiary. USCIS approved this petition in April 2008,

and assigned it a priority date of April 26, 2001,

corresponding to the date that Lawrence Equipment had

originally filed the application for labor certification. 

Valencia then filed an application with USCIS to adjust his

status to that of a lawful permanent resident under 8 U.S.C.

§ 1255(i)(1)(B)(ii). That section allows a beneficiary of an

application for a labor certification filed on or before April

30, 2001 to apply for an adjustment of status. 8 U.S.C.

§ 1255(i)(1)(B)(ii).

USCIS found that Valencia did not qualify for relief

under § 1255(i) because he was not a named beneficiary of

Lawrence Equipment’s labor certification as of April 30,

1 The record does not show exactly when this substitution occurred, but

Valencia concedes it occurred after April 30, 2001.
VALENCIA V. LYNCH 5

2001, but was instead later substituted as a beneficiary. The

Department of Homeland Security commenced removal

proceedings.

In proceedings before an Immigration Judge (“IJ”),

Valencia renewed his application for adjustment of status and

reiterated his argument that he was a grandfathered alien

under 8 U.S.C. § 1255(i). The IJ denied Valencia’s

application because of a regulation promulgated by the

Attorney General stating 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). Valencia

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

in January 2013, the BIA affirmed. The BIA found the

regulation controlling and declined to consider its validity. 

Valencia was given sixty days to voluntarily depart from the

country.

In the present petition for review, Valencia argues that the

BIA erred because the grandfathering provision of § 1255(i)

unambiguously applies to substitute beneficiaries like him,

and the Attorney General’s regulation to the contrary is an

unreasonable interpretation of the statute.

DISCUSSION

We must decide whether the Attorney General’s

regulation at 8 C.F.R. § 1245.10(j) warrants deference under

the familiar two-step analysis set forth in Chevron U.S.A. Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). We join the Second and Fourth Circuits in holding

that it does. See Lee v. Holder, 701 F.3d 931, 938 (2d Cir.

2012); Suisa v. Holder, 609 F.3d 314, 320 (4th Cir. 2010).
6 VALENCIA V. LYNCH

1. The Statute is Ambiguous as to Substitute

Beneficiaries

Step one of the Chevron framework requires us to ask

“whether Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the end of

the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” 

Chevron, 467 U.S. at 842–43. Our analysis begins “with the

text of the statute.” Yokeno v. Sekiguchi, 754 F.3d 649, 653

(9th Cir. 2014). “The plainness or ambiguity of statutory

language is determined by reference to the language itself, the

specific context in which that language is used, and the

broader context of the statute as a whole.” Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997). We do not look at

contested phrases in isolation because “[t]he meaning—or

ambiguity—of certain words or phrases may only become

evident when placed in context.” FDA v. Brown

&Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000).

Turning to the statute at issue here, 8 U.S.C. § 1255(i), we

conclude that Congress did not speak to the question of

whether that section applies to substitute beneficiaries of

labor certifications. That section provides in relevant part:

Notwithstanding the provisions of

subsections (a) and (c) of this section, an alien

physically present in the United States . . .

who is the beneficiary . . . of . . . an

application for a labor certification under

section 1182(a)(5)(A) of this title that was

filed pursuant to the regulations of the

Secretary of Labor on or before [April 30,

2001] . . . may apply to the Attorney General
VALENCIA V. LYNCH 7

for the adjustment of his or her status to that

of an alien lawfully admitted for permanent

residence.”

8 U.S.C. § 1255(i)(1)(B)(ii).

Significantly, the statute uses only the general term

“beneficiaries,” not the more specific term “substitute

beneficiaries.” Valencia argues that the broader term

necessarily encompasses the narrower, but the context of the

grandfathering provision suggests otherwise. Indeed, as the

Second and Fourth Circuits observed, “‘the beneficiary’ . . . 

could refer to one of the three classes of aliens: (1) initial

beneficiaries only; (2) initial beneficiaries and substituted

beneficiaries, but only if the substitution occurred on or

before April 30, 2001; or (3) currently named beneficiaries,

whether original or substituted, regardless of when the

substitution occurred.” Lee, 701 F.3d at 936–37 (citing Suisa,

609 F.3d at 319). Moreover, Congress’s inclusion of the

sunset provision limitingreliefto beneficiaries of applications

filed by April 30, 2001, indicates that a more restrictive

interpretation might be appropriate. At a minimum,

“[c]ongressional silence regarding which of these three

options is correct suggests ambiguity under step one of the

Chevron analysis.” Id at 937.

2. The Attorney General’s Regulation is a

Reasonable Interpretation of the Statute

Under step two of the Chevron framework, we ask

“whether the agency’s answer is based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843. If the

agency sets forth a reasonable interpretation that is not
8 VALENCIA V. LYNCH

arbitrary, capricious, or manifestly contrary to the statute,

then we must defer to it. Id. at 844.

For the same reasons that we found the statute ambiguous,

we hold that the Attorney General’s regulation is a

permissible interpretation. See 8 C.F.R. § 1245.10(j). The

inclusion of the sunset provision suggests that Congress

intended to impose a temporal constraint on eligibility for

grandfathered status. The ambiguity is in whether Congress

intended the statute to benefit a discrete, time-bound group of

immigrants, or a discrete, time-bound group of employers

with approved labor certifications. The former interpretation

is the one adopted by the Attorney General, and indeed it

makes better sense of the statute. See Lee, 701 F.3d at 937

(“The focus of § 1255(i)(1)(B)(ii) . . . is on immigrants, not

employers.”) Therefore, it was permissible for the Attorney

General to interpret the statute to preclude beneficiaries

substituted after the sunset date from obtaining grandfathered

status.

Valencia nonetheless argues that the regulation is an

impermissible interpretation of the statute because it conflicts

with another regulation at § 1245.10(a)(3), which says in

relevant part:

A visa petition that was properly filed on

or before April 30, 2001, and was approvable

when filed, but was later withdrawn, denied,

or revoked due to circumstances that have

arisen after the time of filing, will preserve the

alien beneficiary’s grandfathered status . . . .

8 C.F.R. § 1245.10(a)(3). We see no conflict between the

two regulations.
VALENCIA V. LYNCH 9

According to Valencia, because § 1245.10(a)(3) lists

several post-filing changes to labor certifications that do not

affect an original beneficiary’s status, it follows that any

unmentioned post-filing changes must necessarily affect the

original beneficiary’s status. Thus, Valencia’s argument

goes, these latter changes such as the substitution of a new

beneficiary would presumably cause the original beneficiary

to lose grandfathered status and the substitute beneficiary to

gain it.

Valencia’s argument is unpersuasive. The Attorney

General could well have promulgated § 1245.10(a)(3) merely

to address the consequences of a withdrawn, denied, or

revoked petition. That choice doesn’t necessarily imply that

there are other post-filing changes to applications that

adversely affect the original beneficiaries’ grandfathered

status, let alone that such changes include the substitution of

a new beneficiary. In fact, by protecting immigrants from

losing their grandfathered status, this regulation may actually

support the Attorney General’s interpretation of § 1255(i) as

focusing on a discrete group of immigrants rather than a

discrete group of labor certification applications.

CONCLUSION

We hold that 8 C.F.R. § 1245.10(j) is entitled to

deference. Accordingly, the BIA properly denied Valencia’s

application for an adjustment of status.

The petition for review is DENIED.