Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2225
RESENDE AFONSO DA CUNHA,
Petitioner,
v.
MICHAEL B. MUKASEY,*
United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Howard, Circuit Judges,
and Saylor,** District Judge.
Jose L. DelCastillo and DelCastillo & Associates, LLC, on
brief for petitioner.
Peter Keisler, Assistant Attorney General, Civil Division,
Anthony W. Norwood, Senior Litigation Counsel, and Robbin K. Blaya,
Attorney, Office of Immigration Litigation, U.S. Department of
Justice, on brief for respondent.
December 24, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B.
Mukasey has been substituted for former Attorney General Alberto R.
Gonzales.
**
Of the District of Massachusetts, sitting by designation.
Per Curiam. Petitioner Resende Afonso Da Cunha appeals
an order of the Board of Immigration Appeals (BIA) affirming an
order of removal against him and denying his motion to reopen. We
affirm.
I.
Da Cunha, a citizen of Brazil, entered the United States
on a visitor visa in February, 2000 with permission to stay for six
months. He overstayed that visa. Da Cunha was employed with the
Bestfoods Baking Company (Bestfoods) in Vermont, and through
Bestfoods began the process of applying for an adjustment of status
to become a lawful permanent resident.
There is a three-step process for an alien seeking to
adjust his or her status based on employment. The first step
requires the alien's employer to file a labor certification
application. See 8 U.S.C. § 1255(i)(1)(B)(ii). After acquiring a
valid labor certification, the employer must then as a second step
file an I-140 form (Immigrant Petition for Alien Worker) on the
alien's behalf. See 8 U.S.C. § 1154. Finally, the alien must file
an I-485 form (Application for Adjustment of Status). See id.
Here, Da Cunha commenced the process with Bestfoods but
did not finish it. On April 27, 2001, Bestfoods filed a Form ETA-
750 on his behalf. The Vermont Department of Labor1 assigned a
1
In July 2005, the Vermont Department of Labor was formed by
merging the former Departments of Labor and Industry and Employment
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"priority date" of April 30, 2001 to the application. On June 20,
2001, the Immigration and Naturalization Service (INS)2 served Da
Cunha with a Notice to Appear, charging that he was subject to
removal for overstaying his visa. He was detained by the INS and,
as a consequence, was terminated from his employment with
Bestfoods. Bestfoods did not elect to further pursue the labor
certification process on Da Cunha's behalf.
In 2002, Da Cunha was employed by Silva's Donuts. That
employer filed a new labor certification application and an I-140
on his behalf. In April, 2004, the DOL approved the application,
which had a priority date of September 25, 2002, and the I-140.
That priority date made him ineligible for an adjustment of status
under section 245(i) of the Immigration and Naturalization Act, so
the government moved to pretermit his I-485 application for
adjustment of status. See 8 U.S.C. § 1255(i)(B)(ii).
An alien applying for an adjustment of status as the
beneficiary of a labor certification petition must show that the
petition (1) was properly filed pursuant to the regulations of the
Secretary of Labor on or before April 30, 2001, and (2) was
and Training. For ease of understanding, we will refer to the
Vermont Department of Labor when referring to either of the former
agencies.
2
In March 2003, the functions of the INS were reorganized and
transferred to the Department of Homeland Security (DHS). Dacosta
v. Gonzales, 449 F.3d 45, 47 n. 1 (1st Cir. 2006). To avoid
confusion, we will use “INS” whether referring to the former INS or
the present DHS.
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"approvable when filed." 8 C.F.R. § 245.10(a)(1)(i)(B). An
applicant meeting these criteria is "grandfathered." Id. A
grandfathered alien may apply for an adjustment of status through
a new employer using the earlier application's priority date. See
8 C.F.R. § 245.10(a)(3)(2007). Da Cunha argued before an
Immigration Judge ("IJ") that he was grandfathered by his first
labor certification application, and that his second application
should not be pretermitted.
The government argued that Da Cunha's first labor
certification did not give him grandfathered status because that
labor certification was not "approvable when filed" as required by
8 C.F.R. § 245.10(a)(1)(i)(B). In support of this contention, the
government produced a July, 2001 letter from the Vermont Department
of Labor to Da Cunha, indicating that Bestfoods was an "inactive"
employer. The government also noted that Da Cunha's pay stubs
listed his employer as Charles Freihofer Baking, rather than
Bestfoods, and that the labor certification was signed by a
Bestfoods supervisor, not by a more senior company official.
Da Cunha did not introduce evidence before the IJ to
refute the government's contention.
In March, 2005, the IJ concluded that Da Cunha’s first
labor certification was not approvable when filed because it
referenced an employer who was "inactive" at the time of filing.
Noting that Da Cunha did not refute his employer's inactive status,
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the IJ pretermitted his I-485 adjustment of status application and
denied Da Cunha voluntary departure as a matter of discretion.
Da Cunha appealed the decision to the BIA and also filed
a motion to reopen, requesting that the BIA remand his case to the
IJ so the IJ could consider new evidence about whether he should be
"grandfathered" under section 245(i). The BIA adopted and affirmed
the decision of the IJ. The BIA also denied Da Cunha’s motion to
reopen, finding that the documents he sought to admit were not new
or previously unavailable. This petition followed.
II.
Da Cunha argues that his first labor certification was
"approvable when filed" and that the BIA’s denial of his motion to
reopen was an abuse of discretion.3
As to his first argument, we review the IJ’s decision
under the substantial evidence standard. Chreng v. Gonzales, 471
F.3d 14, 21 (1st Cir. 2006). Under this standard, the decision
will stand unless the record evidence would compel a reasonable
factfinder to find otherwise. Pan v. Gonzales, 445 F.3d 60, 61
(1st Cir. 2006). Where the BIA summarily affirms the IJ’s
decision, we review the IJ’s decision directly. Tota v. Gonzales,
457 F.3d 161, 165 (1st Cir. 2006); 8 C.F.R. § 1003.1(e)(4)(2007).
3
Defendant’s other arguments on appeal were never raised before
the BIA and thus are not properly before us. Molina De Massenet v.
Gonzales, 485 F.3d 661, 664 (1st Cir. 2007) (declining to review
issues not raised before the BIA).
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This case hinges on the meaning of "approvable when
filed." If Da Cunha's first labor certification was approvable
when filed, its priority date of April 30, 2001 would have
grandfathered Da Cunha such that he could subsequently be eligible
to undertake the three-step labor certification process with
another employer. If it was not approvable when filed, then he is
not grandfathered and not eligible for an adjustment of status
through his employment with Silva's Donuts because his 2002
priority date is too late under the regulations. 8 C.F.R. §
245.10(a)(1)(i)(B).
"Approvable when filed" means that, at the time of
filing, the qualifying application for labor certification was
"properly filed, meritorious in fact, and non-frivolous."
Echevarria v. Keisler, 505 F.3d 16, 18 (1st Cir. 2007); 8 C.F.R. §
245.10(a)(3). The burden is on the petitioner to show that his
application was approvable when filed. 8 U.S.C. § 1229a(c)(2).
We focus on the second prong, whether the application was
meritorious in fact. We said in Echevarria that there need not be
a finding of fraud to support a conclusion that an application is
not meritorious in fact. 505 F.3d at 19 n. 3. There, a finding of
"identified gaps" in a petitioner's application, where the
petitioner had been an opportunity to explain the gaps but failed
to do so, was sufficient to show that the application was not
meritorious in fact. Id.
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Here, like in Echevarria, the IJ identified a specific
discrepancy in the labor certification application: Bestfoods'
"inactive" status. The Vermont Department of Labor indicated that
Bestfoods was an "inactive" employer, in that it was not paying
unemployment taxes for its workers, at the time that Da Cunha’s
first labor certification was filed. The burden was on Da Cunha to
prove that his first labor certification was properly filed, yet he
offered no evidence before the IJ or the BIA to refute the inactive
status of his employer. In fact, Da Cunha was explicitly invited
to send contrary evidence or an explanation as to why Bestfoods was
inactive to the Vermont Department of Labor, but did not do so.
Because Da Cunha failed to offer an explanation for the
discrepancy that satisfied the IJ, the IJ concluded that Da Cunha’s
first labor certification was not "approvable when filed" because
it was not meritorious in fact. This conclusion is supported by
substantial evidence.
We note that Da Cunha finds no refuge in the provision in
8 C.F.R. § 1245.10(a)(3) that preserves an alien's grandfathered
status if a "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 [and] . . . the alien is otherwise eligible."
Because we conclude that his first labor certification was not
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approvable when filed, it does not matter if it was later revoked
due to circumstances that arose after April 30, 2001.
III.
We review the BIA’s denial of a motion to reopen or
reconsider only for abuse of discretion. Abdullah v. Gonzales, 461
F.3d 92, 99 (1st Cir. 2006). This standard is highly deferential;
focusing on the rationality of the decision to deny reconsideration
or reopening, not on the merits of the underlying claim. Id. “An
abuse of discretion will be found where the BIA misinterprets the
law, or acts either arbitrarily or capriciously.” Wang v.
Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004). Motions to reopen are
permitted only where they present new evidence that is material and
was previously unavailable. Orehhova v. Gonzales, 417 F.3d 48, 52
(1st Cir. 2005); 8 C.F.R. § 1003.2(c)(1)(2007).
Here, the documents submitted to the BIA with Da Cunha’s
motion to reopen were not new, material and previously unavailable.
In particular, the company report and the news story pertaining to
when Bestfoods was purchased by another company were previously
available. Thus, there was no abuse of discretion in denying Da
Cunha’s motion to reopen.
IV.
Da Cunha’s petition for review is denied.
So Ordered.
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