F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A N U E L V A L E

N C I A , P etitioner ,

v

.

L O R E T T A E. L Y

N C H , Attorney General, Respondent

. N o. 13-70414

Ag ency No. A088-199-561

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted October 21, 2015—Pasadena, California

F iled F ebruary

2, 2016

B efore: J ohnnie B . Rawlinson and J acqueline H. Ng uy en, Circuit J udg es and Michael A. Ponsor, * Senior District

J udg e.
Opinion by J udg e Ng uy en

* T h e H o n o rab le Mich ael A

. P o n so r, Sen io r District J u d g e f or th e U .S. District Co u

rt f o r Massach u setts, sittin g b y d esig n atio n

.V A L E N C I A V

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N C H 2

SUMMARY * *

Im m igration

The p anel denied Manuel Valencia’s petition for r eview of the B oard of I mmig ration Appeals’ denial of adjustment o f status under a r e gulation that precludes an a lien substituted for the previous b enefic i a r y of a labor c ertification application after a sunset date f r o m c laiming to be a g randfathered alien.

The panel he ld 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 Resour c es Defense Council, Inc ., 467 U.S. 837 (1984). The panel held that 8 U.S.C. § 1255(i), the statute that allows a b e n e ficiary of a labor c ertification application filed on or before April 30, 2001, to a p p ly for adjustment, is ambig uous because it uses only t he g eneral term “beneficiaries,” not the more specific term “ substitute beneficiaries.” The panel further held that it was permissible for the A ttorney General to interpret th e s t atute to preclude beneficiaries substituted a f ter the sunset date f

rom obtaining g randfathered status.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.V A L E N C I A V

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COUNSEL

L arry L iem Doan (arg

ued), L aw Office of L arry L iem Doan, L os Ang eles, California, for Petitioner.

Ann M. W elhaf (arg

ued), Trial Attorney ; To n y W est, Assistant Attorney General; Stephen J

. Fl y nn, Assistant Director; Office of I mmig ra t ion L itig ation, U nited States Department of J ustice, W ashing ton, D.C., for Respondent.

OP INION

NGUYEN, Circuit J u dg e:

Petitioner Manuel Valencia, a cit i z e n of Mex ico, seeks

a d j u s t m e n t o f h i s i m m i g r a t i o n s t a t u s u n d e r t h e “g randfathering ” e x ception for beneficiaries of laborcertification applications f iled b efore April 30, 2001

. See 8 U.S.C. § 1255(i)(1)(B )(ii). The I mmig ration J udg e a nd B oard of I mmig ration Appeals denied Valencia’s a pplication for adjustment of status, citing a regu lation promulg ated b y the Attorney General that say s, “An alien who was substituted for the previous beneficia r y of the application for the labor certification after April 30, 2001, will not be considered to be

a g randfathered alien.” 8 C.F .R. § 1 245.10(j). V alencia, w ho undisputedly falls within the scop e o f that regulation, challeng es its v alidity

. B ecause the regulation is a reasonable interpretation o f an ambig uous statute and e ntitled to deference, the petition is denied.V A L E N C I A V

. L Y

N C H 4

BACK G ROUND

Valencia entered the United States in J une 2006 on a B

- 2 to urist v isa that ex pired later that y e ar. About five y ears earlier, on April 2 6, 2001, L awrence Equipment, I nc., a California corporation, had filed an application f o r labor certification, w h ich was approved by the United States Depart m ent of L abor. This application, however, d id not

name Valencia as a beneficiary

. At some point after April 30, 2001, L a wrence E quipment obtained approval from the Department o f L abor to substitute Valencia as the b eneficiary of its approved labor certification. 1

I n J anuary 2007, shortly after Valencia’s tourist visa

ex p ired, L a

wrence Equipment filed with the United States Ci t i z enship and I mmig ration Services (“USCI S”) an “I mmig rant Petition for Alien W or k e r ” naming Valencia a s the beneficiary

. USCI S a pproved this petition in April 2008, and a ssig ned it a priority date of Ap r i l 26, 2001, correspond i n g to the date that L a wrence Equipment h ad orig inally filed the application f or labor certification. Valencia then filed an a

p plicatio n wi t h USCI S to adjust his status to that of a lawful p e r m a n e n t resident under 8 U .S.C. § 1255(i)(1)(B )(ii)

. T h a t section allows a beneficiary of an applicati o n f

o r a labor certification filed on or before April 30, 2001 to apply for an a djustment of status. 8 U .S.C. § 1255(i)(1)(B )(ii).

USCI S found that Valencia did not qualify for relief

u nder § 1255(i) b e c ause he w as not a n amed benefi c i a ry o f L awrence Equipment’ s labor c ertification as of April 30,

1 T h e reco rd d o es n o t sh o w ex actly w h en t h is s u b stitu tio n o ccu rred
, b u t Valen cia co n ced es it o ccu rred af ter A p ril 3 0, 2 00 1

.V A L E N C I A V

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2001, but was instead later substituted as a beneficiary

. The Departmen t of Homeland Security commenced removal proceeding s.

I n p roceeding s before an I mmig r ation J udg e (“I J ”), Valencia renewed his application for adjustment of status a nd reiterated his argument th a t h e was a g randfathered alien under 8 U .S.C. § 1255(i). The I J d e n i e d Valencia’s application because of a regula t ion promulg ated by the Attorney G eneral stating that “[ a ] n alien who was substituted for the previous beneficiary of the application f o r the labor certification after April 30, 2001, will n ot be c onsidered to be

a g randfathered alien

. ” 8 C.F .R. § 1 245.10(j). Valencia appealed to the B oard of I mmig ration Appeals (“B I A”), but, in J anuary 2 013, t he B I A a ffirmed. The B I A found the reg ulation con t r o l l ing and declined to consider its validity

. Valencia was g iven six ty

day s to v oluntarily depart from the country

.

I n the present petition f

or review, Valencia argues that the B I A erred because the g

r andfathering

provision of § 1255(i) unambig uously a

pplies to substitu t e b eneficiaries like him, and the A ttorney General’s regu l ation to the contrary is an unreasonable interpretation of the statute.

D ISCUSSION

W e must decide whether the Attorney G eneral’s reg ulation at 8 C.F .R. § 1245.10(j) warrants deference under the familiar two-step analy sis set forth in Chevron U.S.A. Inc.

v. Natural Resource s Defense Council, Inc. , 467 U.S. 837 (1984). W e join the Secon d a n d Fourth Circuits in holding that it d oes. See Lee v. Holder
, 701 F. 3 d 9 3 1, 9 3 8 (2d Cir. 2012); Suisa v. Holder , 609 F .3d 314, 320 (4th Cir. 2010).V A L E N C I A V

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1. The Statute is Am biguous as t o Substitute Benef iciaries

St e p o n e of the Chevron framework requires u s to ask “whether Cong ress has directly spoken to the precise question at issue. I f the intent of Cong ress i s c l ear, that is the end o f the matter; for the court, as well as the ag ency , must g ive effect to the u nambig u o usly ex pressed intent of Co n gr e s s.” Chevron , 467 U.S. at 842–43. Our a naly sis beg ins “with the tex t of the statute.” Y

okeno v. Sekiguchi
, 754 F .3d 649, 653 (9th Cir. 2014). “The plainness or ambig uity of statutory lang uag e is determined by r eference to the lang uag e itself, the specific contex t in w hich that lang u ag e is used, and the broader contex t of the statute as a w hole.” Robinson v. Shell Oil Co.
, 519 U.S. 3 3 7 , 3 41 (1997). W e do not look at contested p hrases in isolation b e cause “[ t] he meaning —or ambig uity —of certain words or phrase s m a y only become evident when placed in contex t.” FDA v

. Bro w n & W illiamson Tobacco Corp. , 529 U.S. 1 20, 132–33 (2000).
Turning to the statute at issue here, 8 U.S.C. § 1255(i), we conclude that Cong ress did not speak to the question o f whether that section applies t o substitute beneficiaries o f labor certifications. That section provides in relevant part:

N o twithstanding the provisions of subsections (a) and (c) of this section, a n a lien phy sically present in the U nited States

. . . who is the benefi c i ar y

. . . of

. . . an application for a labor certificatio n under section 1182(a)(5)(A) of this title that was fi l e d pursuant to the regulations of the Secretary of L a

bor o n o r b e f

ore [ April 30, 20 0 1]

. . . may apply to the A ttorney GeneralV A L E N C I A V

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for the adjus t m e n t of h is or h er status to that of an alien lawfully admitted for permane n t residence.”
8 U.S.C. § 1255(i)(1)(B )(ii).
Sig nificantly
, the statute uses only the g eneral term “beneficiaries,” not the more specific term “substitute beneficiaries.” Valencia argue s that the broader term necessarily encompasses the narrower, but the contex t of the g randfathering provision su gge s t s otherwise. I n deed, as the Second a nd F o urth Circuits observed, “‘the b e n e fi ciary ’

. . . c o uld refer to one of the three classes of aliens: (1) i n i t i al beneficiaries only ; (2) init i a l beneficiaries and substituted beneficiaries, but only if the substitution o c curred on o r be fore April 3 0, 2001; or (3) currently named beneficiaries, whether orig inal or substituted, r e g ardless of when the substitution occurred.” Lee , 701 F .3d at 936–37 (citing Suisa
, 609 F .3d at 319). Moreover, Cong ress’s i n c l usion of the sunset provision limit i n g r e l i e f t o b eneficiaries of applications filed by April 30, 2001, indicates th at a more restrictive interpretation mig ht be appropriate. At a minimum, “[ c] ongr e s sional silence reg arding which of these three options is correct sug g ests a m b i guity under step o ne of the Chevron analy sis.” Id at 937.

2. The Attorney G eneral’s Regu l ation is a Reasonable Interpretation of the Statute

Under step two of the Chevron framework, w e ask “whether the ag ency ’s an s we r is based on a permissible construction o f the statute.” Chevron
, 467 U.S. at 843. I f the ag ency sets forth a reasonable interpretation that i s notV A L E N C I A V

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arbitrary
, capricious, or manifestly contrary to the statu t e, then we must defer to it. Id. at 844.

F or the same reasons that we found the statute ambig uous,
we h old that the Attorney G eneral’s regulatio n i s a permissible interpretation. S ee 8 C.F .R. § 1245.10(

j )

. The inc l u s i o n of the sunset provision sug g ests that Cong ress intended to impo s e a temporal constraint on elig ibility for g randfathered status. The ambig uity is in whether Cong ress intended the statute to benefit a discrete, time-bound g r oup o f immig rants, or a discrete, time-bound g roup of employ ers with approved labor c ertifications. The former interpretation is the o ne adopted by the A ttorn e y 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)

. . . i s on immigrants , not

em ployers .”) Therefore, it w as p ermissible for the Attorney General to interpret the statute to precl u d e b eneficiaries substituted after the sunset date from obtaining g randfathered status.

Valencia n onetheles s a r g ues that the regulation is an impermissible interpretation of the statute because it conflicts with another regulation at § 1 245.10(a)(3)
, which say s in relevant part:

A visa petition th a t w a s properly filed on
or before April 30, 2 001, and was approvable wh e n f iled, but was later withdrawn, denied,

or revoked due to circ umstances that have arisen after the time of filing
, will preserve the alien beneficiary ’ s g randfathered status . . . .

8 C.F .R. § 1245.10(a)(3). W e see no conflict betwee n t h e two reg ulations.V A L E N C I A V

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According to Valencia
, because § 1245.10(a)(3) lists several post-filing

chang es to labor certifications that do not affect an orig inal beneficiary ’ s status, it follows that any unmentioned post-filing c h ang es must necessarily affect the orig inal beneficiary ’s s t a t u s. Thus, Valencia’s argument g oes, these latter chang es such as the substitution o f a new beneficiary would presumably cause the orig inal b eneficiary to lose g randfathered status and the substitute beneficiary to g ain it.

Valencia’s argume n t is unpersuasive. The Attorney General could well have promulg ated § 1 245.10(a)(3) merely to address the consequences of a withdrawn, denied, o r revoked petition. That choice doesn’t necessarily imply that there are o ther post-filing chang es to applications that adversely affect the orig inal beneficiarie s ’ g randfathered status, let alone that such chang es include the substitution o f

a new beneficiary

. I n fact, by protecting immig rants from losing their g r andfathered status, this regulation may actually support the Attorney General’s interpretation of § 1255(i) a s focusing on a discrete g roup of immig rants ra t h e r t han a discrete g roup of labor certification applications.

CONCLUSION

W e hold that 8 C.F

. R. § 1 2 4 5

. 1 0(j) is entitled to deference. According ly
, the B I A properly denied Valencia’s application for an adjustment of status.
The petition for review is DENIED

.