United States Court of Appeals
For the First Circuit
No. 07-1155
SILVIA DE ACOSTA,
Petitioner,
v.
ERIC H. HOLDER,JR.* Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Mark C. Walters, Assistant Director, Office of Immigration
Litigation, and Joanne E. Johnson, Attorney, United Immigration
Division, on brief for respondent.
February 12, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
automatically substituted for former Attorney General Michael B.
Mukasey as the respondent herein.
HOWARD, Circuit Judge. Silvia De Acosta, a citizen of
Brazil, petitions for review of the denial of her application for
adjustment of status. The Immigration Judge ("IJ") found De Acosta
ineligible for adjustment of status under § 245(i) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i), and
thus removable. The IJ's finding rests on two distinct statutory
criteria, each of which independently supports a determination of
ineligibility: she was not "grandfathered" because she did not
file her application for labor certification on or before April 30,
2001, and, furthermore, at the time of her appearance before the IJ
in July 2005, there were no visas available for her employment
category. The Board of Immigration Appeals ("BIA") affirmed the
IJ's ruling without opinion. We deny the petition for review.
I.
We set out the facts as they appear from the record.
Petitioner, then Silvia Silva, arrived in the United States in July
1995 on a B2 (tourist) visa that expired in January 1996. She
remained in the United States beyond that date, and thus is
considered to have entered the country without inspection. See 8
U.S.C. § 1225. She has been employed at the Greenery
Rehabilitation and Skilled Nursing Center (the "Greenery") in
Hyannis, Massachusetts since October 2000. In 2001, she began the
process of applying for an adjustment of status to become a lawful
permanent resident.
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The first step in applying for an adjustment of status
based on employment is for the employer to file, on the alien's
behalf, a labor certification application. See 8 U.S.C. §
1255(i)(1)(B)(ii). The Greenery sent De Acosta's labor
certification application in to the Massachusetts Division of
Employment and Training ("DET") on April 2, 2001, and DET received
and date-stamped the application on April 5, 2001. It appears that
DET returned the application to De Acosta's employer for correction
and resubmission.1 It also appears that DET received the
resubmitted application on June 1, 2001. The date stamp of April
5, 2001 is crossed out on De Acosta's application, and "6.1.2001"
is handwritten in next to it. DET assigned June 1, 2001, as the
"priority date."2
Around this time, De Acosta married a United States
citizen and sought an adjustment of status on that basis instead.
As a result of this development, neither she nor her employer
monitored the status of her labor certification application with
DET. Her application for an adjustment of status based on the
1
A letter in the record from a DCS employee, obtained in April
2005, states that De Acosta's application was "received . . . on
April 5, 2001 and returned . . . to the Attorney of Record for
corrections of USDOL regulations on the application."
2
A priority date is used by the United States Citizenship and
Immigration Service to set out the priority with which an alien
will be able to obtain a visa, or will be allowed to adjust status.
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marriage was denied in February 2003, at which time she was served
with a Notice to Appear in removal proceedings.
De Acosta then renewed her efforts to apply for an
employer-sponsored adjustment of status. Her labor certification
application (with the June 1, 2001 priority date) was approved by
DET's successor, the Massachusetts Division of Career Services
("DCS") in June, 2003. Her employer then submitted Form I-140 to
the United States Citizenship and Immigration Services ("USCIS"),
and that petition was approved in January, 2004. De Acosta had
appeared before an IJ in August, 2003 after initially requesting a
continuance, and conceded removability. Prior to her next
appearance, De Acosta filed an application for adjustment of status
in order to avoid removal, and, in the alternative, applied for
voluntary departure.
The IJ found at De Acosta's final hearing in June, 2005
that the filing date for De Acosta's labor certification
application, for the purposes of grandfathering her application for
adjustment of status under section 245(i) of the INA, was the
priority date assigned to her labor certification application (June
1, 2001). Accordingly, the IJ concluded that she was ineligible to
apply for adjustment of status because she failed to meet the
statutory requirement that a labor certification application must
be filed on or before April 30, 2001. See 8 U.S.C. §
1255(i)(B)(ii). Also, as an alternative, independent ground for a
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finding of ineligibility, the IJ found that De Acosta failed to
show that a visa was immediately available to her, as required by
8 U.S.C. § 1255(i)(C)(2)(B). The IJ held that De Acosta was thus
ineligible for adjustment of status and granted her request for
voluntary departure in lieu of removal.
De Acosta appealed the IJ's decision to the BIA on both
the timely filing issue and the visa availability issue. The BIA
affirmed the IJ's opinion without writing separately.
II.
Ordinarily, we will affirm a decision on adjustment of
status if the decision is "supported by reasonable, substantial,
and probative evidence on the record considered as a whole." Syed
v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004) (citation and
internal quotation marks omitted).3 Additionally, as here, when
the BIA summarily affirms the IJ's opinion, this court reviews the
decision of the IJ. Quevedo v. Ashcroft, 336 F.3d 39, 43 (1st Cir.
2003). Our decision in this case, however, is governed by De
Acosta's failure to contest a dispositive issue.
In her petition for review, De Acosta raises only the
issue of her eligibility for an adjustment of status based on the
filing date of her labor certification application. She does not
offer an explanation for why the IJ erred in finding her
3
The parties dispute the standard of review applicable to
questions of law in this case, but our resolution of the case does
not require us to address this issue.
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inadmissible under 8 U.S.C. § 1255(i)(C)(2)(B), the provision
requiring that an applicant have a visa immediately available. The
government argues that De Acosta's failure to brief any argument on
the visa availability question constitutes a waiver of that
dispositive issue and that on this basis alone, we should affirm
the IJ's finding of ineligibility.
We agree that the visa availability issue is waived.4
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990)(“Issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.”).
Further, we agree that the visa availability issue is dispositive.
Nevertheless, we address briefly the IJ's alternative ruling that
De Acosta's untimely filing of her labor certification application
rendered her ineligible for adjustment of status.
Adjustment of status is “a process whereby certain aliens
physically present in the United States may obtain permanent
resident status . . . without leaving the United States.” 3B Am.
Jur. 2d Aliens & Citizens § 2134. An alien can seek adjustment of
status as a form of relief in removal proceedings, and in that case
the burden is on the alien to establish eligibility. 8 U.S.C. §
1229a(c)(4). In general, aliens who enter the country without
4
Although we need not decide the issue, substantively it appears
that the IJ was correct in determining that for De Acosta's
employment category, "Other Workers," in June 2005, no visas were
available. Information on the availability of visas is published
monthly by the United States State Department.
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inspection are not eligible to seek adjustment to lawful permanent
resident status. See 8 U.S.C. §§ 1255(a),(c). De Acosta, however,
argues that she is eligible for an exception created by 8 U.S.C. §
1255(i).
To be eligible for an adjustment of status under this
exception, an alien who has entered the United States without
inspection must obtain an approved petition (either an immigrant
visa petition or an application for labor certification), as
described in 8 U.S.C. §§ 1255(i)(1)(B)(i)-(ii). Applicant
eligibility additionally depends on the "grandfathering" provision
contained in 8 U.S.C. § 1255(i)(1)(B). An alien's petition must
have been filed by April 30, 2001, in order to preserve the alien's
ability to file an application for adjustment of status (in other
words, to "grandfather" the alien). 8 U.S.C. § 1255(i)(1)(B)(ii).
Grandfathering applies when there has been "[a]n
application for labor certification under section 212(a)(5)(A) of
the [INA] that was properly filed pursuant to the regulations of
the Secretary of Labor on or before April 30, 2001, and which was
approvable when filed." 8 C.F.R. § 245.10(A)(1). The term
"approvable when filed" means the application was "properly filed,
meritorious in fact, and non-frivolous." 8 C.F.R. § 245.10(A)(3)
(2007). "Properly filed" means the application was "properly filed
and accepted pursuant to the regulations of the Secretary of Labor,
20 C.F.R. 656.21." 8 C.F.R. § 245.10(A)(2) (2007).
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In her petition, De Acosta argues that, in this case, it
was error for the IJ to equate the "priority date," which is June
1, 2001, with the date of filing for purposes of the grandfathering
analysis. De Acosta does not argue that the priority date is not
relevant, just that her particular assigned priority date was not
the same as her date of filing. She suggests that agency
regulations and guidance indicate that other documentation, not
exclusively the priority date, can be used to establish when a
labor certification application was filed. De Acosta points to a
1999 INS memo giving an example of what would be sufficient
"documentary proof" of a properly filed application for labor
certification: "a receipt or statement from the DOL that its
records indicate that the application was submitted to the
appropriate State Agency prior to [April 30, 2001]." Robert L.
Bach, Executive Associate Commissioner, INS, Accepting Applications
for Adjustment of Status Under Section 245(i) of the Immigration
and Nationality Act, (June 10, 1999) reprinted in 76 No. 25
Interpreter Releases 1017; see also Ramchandani v. Gonzales, 434
F.3d 337, 339 (5th Cir. 2005) (suggesting that evidence of when a
labor certification application was submitted can consist of "some
showing" that the application was filed).
Further, De Acosta argues that she has made such a
showing. She argues that the cover letter from April 2, 2001, the
signatures on the application dated April 2, 2001, and the date
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stamp of April 5, 2001, all serve to indicate that her labor
certification application was properly filed before April 30, 2001.
She points out that DCS can and does return applications, without
date-stamping, if applications are severely faulty in the filing.
De Acosta argues that the fact that her application was date-
stamped, rather than being returned to her employer without a date
stamp, suggests that the application was not severely faulty in the
filing and was, in fact, approvable when filed.5
Nevertheless, the IJ's decision to deny De Acosta
adjustment of status based on the priority date rather than the
dates offered by De Acosta was supported by substantial evidence.
Ultimately, De Acosta's attempt to establish that her
application was "approvable when filed" on a date other than the
priority date fails. Even were we to accept De Acosta's points
regarding the cover letter, application signatures, and date stamp,
other record evidence indicates that as of April 30, 2001 -- the
dispositive date for grandfathering purposes -- De Acosta's
application was still not "properly filed" under 8 C.F.R. §
245.10(A)(2) and therefore was not "approvable as filed."6
5
The IJ granted three continuances for additional hearings beyond
the initial adjustment of status hearing to receive evidence on the
discrepancy between the priority date of June 1, 2001, and the
apparent application receipt date of April 5, 2001.
6
An application must be, among other things, "properly filed" at
the time of filing to be considered "approvable when filed." 8
C.F.R. § 245.10(a)(3). The petitioner bears the burden of showing
that his or her application was approvable when filed. Id. §
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Specifically, the record evidence indicates that De Acosta's
application was not properly filed because it was incomplete. As
of April 30, 2001, De Acosta had failed to provide her signature on
one of the required supporting forms -- the "statement of the
qualifications of the alien." The form, though ultimately signed
and submitted by Acosta, is dated May 30, 2001 -- precisely one
month after the relevant cut-off date.
The absence of this form when the application was first
submitted provides a reasonable explanation for the June 1, 2001
priority date assigned by the agency. Accordingly, the IJ's
reliance on the priority date, in this particular case, was not
erroneous. And, accordingly, the IJ's ultimate conclusion, that De
Acosta was not eligible for grandfathering because she failed to
satisfy her burden of demonstrating eligibility for adjustment of
status, is supported by substantial evidence. Cf. Echevarria v.
Keisler, 505 F.3d 16, 18 (1st Cir. 2007) (insufficient evidence of
the bona fides of marriage renders an application not "approvable
when filed").
Our conclusion notwithstanding, we acknowledge some
uncertainty about whether an IJ may rely exclusively on the
priority date when determining the timeliness of an application.
Helpfully, the BIA may want to address this particular issue in an
appropriate case.
1229a(c)(2).
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Petition denied.
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