IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60539

SEUNG LYONG SUNG and 

HYUN SOOK SUNG,

Petitioner,

v.

PETER D KEISLER, ACTING U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA Nos. A78 597 388 

A77 246 157

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Seung Lyong Sung and Hyun Sook Sung petition for review of an order of

the Board of Immigration Appeals (“BIA”) holding that the immigration judge

(“IJ”) lacks jurisdiction to determine whether an approved visa qualifies for

portability pursuant to the Immigration and Naturalization Act, § 204(j), 8

U.S.C. § 1154(j). Further, Seung Lyong Sung seeks review of the BIA’s decision

affirming the IJ’s finding that he was not entitled to cancellation of removal. For

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2007

Charles R. Fulbruge III

Clerk
No. 06-60539

2

the following reasons, we grant the petition in part, deny it in part, and remand

to the BIA for further proceedings. 

I.

A. Statutory Framework

An employer of an alien worker may petition the Department of Homeland

Security, U.S. Citizenship and Immigration Services ("USCIS") to grant the

individual an employment-based visa (Form I-140). Approval and adjudication

of employment-based visa petitions are within the exclusive jurisdiction of the

Department of Homeland Security Service Centers. 8 C.F.R. § 205.5(b) (2006).

Pursuant to 8 U.S.C. § 1255, a holder of an employment-based visa may apply

for adjustment of status (Form I-485) which allows certain aliens living in the

United States and employed by American employers to apply to become

permanent residents if: (1) the alien is eligible to receive an immigrant visa; (2)

the visa is immediately available; (3) and the alien is admissible to the United

States. 8 U.S.C. § 1255(a)(1)-(3). 

An alien may lose his eligibility for § 1255 status adjustment while

awaiting the adjustment if, inter alia, the alien is no longer employed by the

employer who submitted the approved visa petition. However, noting the

substantial time necessary for processing adjustment of status applications,

Congress enacted § 204(j) ofthe Immigration and Naturalization Act, 8 U.S.C.A.

§ 1154(j)– the portability statute. This statute provides: 

[A]n individual whose application for adjustment of

status pursuant to section 1255 of this title has been

filed and remained un- adjudicated for 180 days or more

shall remain valid with respect to a new job if the

individual changes jobs or employers if the new job is in

the same or similar occupational classification as the

job for which the petition was filed.
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Thus, an approved immigration petition will remain valid for the purpose of an

application for adjustment of status when the alien changes jobs if two

conditions are met: (1) the adjustment of status application has remained

unadjudicated for more than 180 days; and (2)the alien’s new employmentis the

same or similar to the job for which the visa petition was approved.

Generally, USCIS has jurisdiction over adjustment of status issues. 8

C.F.R. § 245.2(a)(1). However, once an alien "has been placed in deportation

proceedings (other than an arriving alien), the immigration judge hearing the

proceeding has exclusive jurisdiction to adjudicate any application for

adjustment of status." 8 C.F.R. § 1245.2(a)(1).

B. Factual and Procedural Background

Seung Lyong Sung ("Mr. Sung") and Hyun Sook Sung ("Mrs. Sung")

entered the United States in 1989 based on a student visa issued to Mr. Sung;

Mr. Sung never attended school after entering the United States. In 1996, Dong

A. Daily News ("Dong News"), Mrs. Sung's employer at that time, filed an

employment-based visa petition on her behalf. The petition was approved on

January 13, 2000. On November 1, 2000, Mrs. Sung applied for adjustment of

status, seeking permanent residence under 8 U.S.C.A. § 1255. On August 8,

2002, before Mrs. Sung's adjustment application was adjudicated, Dong News

went out of business and accordingly withdrew its visa petition on her behalf.

Mrs. Sung secured employment as a secretary at Korean Journal of Dallas in

September, 2003. Because Dong News withdrew her visa petition, USCIS issued

Mrs. Sung a "Notice of Automatic Revocation," informing her that her visa

petition was revoked and denying her application for adjustment of status in

December, 2003. That same month separate removal proceedings were initiated

against both Mr. and Mrs. Sung. In March, 2004, their hearings were

consolidated after Mr. Sung indicated that his eligibility for adjustment of status

was dependant on approval of Mrs. Sung's adjustment of status application.
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Petitioners' hearing on the merits before the IJ commenced on February

25, 2005. The Sungs argued that Mrs. Sung’s visa petition remained valid

pursuant to § 204(j) because her adjustment of status application had not been

adjudicated within the 180-day time frame and her new job was substantially

similar to the job for which the visa petition had been granted. The IJ held that

she did not have jurisdiction to make a § 204(j) determination; and therefore

denied the Sungs’ application and found the Sungs removable. The IJ ordered

voluntary departure with an alternate order of removal. The Sungs appealed to

the BIA. The BIA affirmed the IJ's decision. Petitioners now appeal the decision

of the BIA to this court.

C. Analysis

On a petition for review of a decision of the BIA, we review questions of

law de novo and findings of fact for substantial evidence. Lopez-Gomez v.

Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). In reviewing the BIA’s

interpretation of immigration statutes, where Congress has evidenced a clear

and unambiguous intent concerning the question before this court, we must give

effect to Congress’s intent. White v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996). If

a statute is silent or ambiguous, we will defer to the agencies interpretation only

if it is based on a permissible construction of the statute. Id. This court reviews

only the order of the BIA and will consider the underlying decision of the IJ if it

influenced the determination of the BIA. Mikhael v. I.N.S., 115 F.3d 299, 302

(5th Cir. 1997). 

Mr. and Mrs. Sung seek review of a BIA order holding that the IJ lacked

jurisdiction to determine whether an approved visa petition remained valid

when the holder of the visa petition changed employment. The government

argues that disputes over portability involve the adjudication of an

employment-based visa petition and that any redetermination of a visa petition's

validity is within the jurisdiction of the USCIS, not the IJ. Accordingly, the
No. 06-60539

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government contends that Mr. and Mrs. Sung should have appealed the USCIS's

revocation of Mrs. Sung's visa petition administratively as opposed to seeking

review of the decision by an IJ. Further, The government insists that IJs lack

the expertise to determine similarity in certain types of employment as required

when making a portability determination. 

While this court has not yet had occasion to consider whether an IJ has

jurisdiction over an alien’s portability claim under § 204(j), in Perez-Vargas v.

Gonzales, 478 F.3d 191 (4th Cir. 2007), the Fourth Circuit recently addressed

this issue. In that case, the petitioner, who was in deportation proceedings

before an IJ, requested and was granted a continuance pending approval of an

employment-based visa petition. Id. at 193. After the visa petition was granted,

he then filed for an adjustment of status pursuant 8 U.S.C.A. § 1255. Id. Before

approval of his adjustment of status, Petitioner lost the job for which the visa

petition had been approved but secured new employment. Id. When Petitioner

appeared before the IJ again, he argued that his visa remained valid under the

portability statute because his current employment was substantially similar to

the job for which the visa petition had been approved. Id. The IJ held that he

lacked jurisdiction to determine portability issues; and the BIA affirmed the IJ’s

decision. Id. 

In Perez-Vargas, the government made the same argument as here: §

204(j) involves an employment-based visa petition determination, not an

adjustment of status determination, and therefore only USCIS has jurisdiction

to determine such issues. Id. The Fourth Circuit disagreed. First, the court

noted that the portability statute is not a jurisdictional statute nor does it

provide for an independent administrative process. Id. Second,the courtturned

to the language of the portability statute which states that it is applicable to

individuals "whose application for adjustment of status . . . has been filed and

remained unadjudicated for 180 days or more." Id. at 194 (citing INA § 204(j),
No. 06-60539

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In Perez-Vargas, the petitioner sought administrative closure of the removal

proceedings and asked the USCIS to make the portability determination; however, the USCIS

refused the petitioner’s request, leaving him unable to avail himself of § 204(j). While there

is no indication in the record that the Sungs attempted to present their portability claims to

USCIS, because we find that the IJ has jurisdiction to make § 204(j) determinations, we do

not address this issue here.

6

8 U.S.C.A. § 1154(j)). The Fourth Circuit determined that based on the plain

language of this statute, it pertains to an adjustment of status application, not

an employment-based visa petition determination. Id. After determining that

an adjustment of status application was at issue, the court observed that under

8 C.F.R. § 1245.2(a)(1), IJs have exclusive jurisdiction to determine adjustment

of status once removal proceedings are initiated. Id. The court concluded that

"because the IJ has exclusive jurisdiction to adjudicate an application for

adjustment of status, he necessarily has jurisdiction to make a § 204(j)

determination, which is simply an act of fact-finding incidental to the

adjustment of status process." Id. Finally, the court notes that § 204(j) does not

distinguish between those individuals with adjustment of status applications

pending before USCIS and those with applications pending with an IJ. Id. at

195. The court concluded that the BIA’s decision makes such a distinction, thus

denying the benefits of § 204(j) to aliens in removal proceedings.1Id. The court

explained that“this result is contrary to the plain language ofthe statute, which

applies to all aliens who have an application for adjustment of status pending

and who otherwise satisfy the statute’s terms.” Id. We agree.

Taking into account the statutory scheme as well as Congress’s

construction of § 204(j), there is no support for the government’s contention that

this statute involves an employment-based visa determination. Accordingly, we

adopt the reasoning of the Fourth Circuit, and similarly hold that § 204(j)

involves an adjustment of status determination. Because IJs are vested with

the exclusive jurisdiction to determine adjustment of status applications once
No. 06-60539

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In remanding, we express no opinion regarding the proper resolution of the

adjustment of status application.

7

removal proceedings are initiated, IJs have jurisdiction to make § 204(j)

determinations, including the jurisdiction to make the factual finding necessary

to ascertain whether employment classifications are the same or similar as

required by the statute. 

II. 

Mr. Sung also contends that the IJ abused its discretion by denying his

cancellation of removal, ruling that Mr. Sung had not established that his

removal would result in exceptional and extremely unusual hardship to his

children under 8 U.S.C. § 1229b(b). Mr. Sung contends that the IJ did not

consider all of the relevant factors in determining that his children would not

suffer the requisite hardship.

Pursuant to 8 U.S.C. § 1252(a)(2)(B)(I), this court does not have

jurisdiction to review “any judgment regarding the granting of relief under

section . . . 1229b.” This provision is not applicable where the appeal involves

constitutional claims or questions of law. § 1252(a)(2)(D). Mr. Sung’s

cancellation of removal under § 1229b(b) does not involve a constitutional claim

or a question of law;therefore,this court does not have jurisdiction to review this

claim.

III.

Because we find the IJ’s and BIA’s interpretation of § 204(j) to be

inconsistent with Congressional intent, we GRANT the petition for review,

VACATE the order of the BIA, and REMAND for proceedings consistent with

this opinion.2 We DENY Mr. Sung’s petition for review of his second claim as

this court lacks jurisdiction to review the matter.