Markovski v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

LJUPCO MARKOVSKI, 
Petitioner,
v.
ALBERTO R. GONZALES, Attorney  No. 05-2317
General; MICHAEL CHERTOFF,
Secretary of Department of
Homeland Security,
Respondents.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A75-960-047)

Argued: February 1, 2007

Decided: May 21, 2007

Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.

Petition denied by published opinion. Judge Widener wrote the opin-
ion, in which Judge Traxler and Judge Duncan concurred.

COUNSEL

ARGUED: Jennifer Sheethel Varughese, Herndon, Virginia, for Peti-
tioner. Leslie Megan McKay, Senior Litigation Counsel, UNITED
STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-
gation, Washington, D.C., for Respondents. ON BRIEF: Joe W.
Nesari, Herndon, Virginia, for Petitioner. Peter D. Keisler, Assistant
2 MARKOVSKI v. GONZALES
Attorney General, Civil Division, Linda S. Wernery, Assistant Direc-
tor, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondents.

OPINION

WIDENER, Circuit Judge:

This is a petition for review of a final decision by the Board of
Immigration Appeals (the Board). We have jurisdiction under 8
U.S.C. § 1252(b)(2).

I.

Ljupco Markovski is a national and native of Macedonia who
entered the United States on September 18, 1998 on a K-1 fiancé visa.
Markovski married his fiancée, Miss Kathleen Spillman (a U.S. citi-
zen) on November 10, 1998 (within 90 days of entry as required by
law, 8 U.S.C. § 1184(d)). The government does not dispute that the
marriage was entered into in good faith and not for the purpose of
fraudulently obtaining an immigration benefit.

On November 16, 1998 Markovski filed a petition with the Immi-
gration and Naturalization Service1 for adjustment of status to that of
an alien admitted for residence based on his marriage to Miss Spill-
man pursuant to 8 U.S.C. § 1255. On February 7, 2000, prior to the
adjudication of his petition for adjustment of status, Markovski’s mar-
riage ended in divorce.

The Immigration and Naturalization Service deemed Markovski’s
application abandoned because he failed to appear at the required
interview. Markovski claims (and the government does not dispute)
that the reason behind his failure to appear was the failure of his now
ex-wife to forward his mail to the new address. Failure to appear for
1
The Immigration and Naturalization Service has since been reorga-
nized and is now called United States Citizenship and Immigration Ser-
vices.
 MARKOVSKI v. GONZALES 3
the adjustment of status interview resulted in INS placing Markovski
in removal proceedings. Because Markovski did not receive the notice
to appear for the removal hearing, the ex-wife again did not forward
the mail, he was ordered removed in absentia.

In the meantime, Markovski obtained employment with Amtrak.
Amtrak submitted an I-140 immigrant petition on behalf of
Markovski. Markovski then applied for legal permanent resident sta-
tus based on that petition. While in the process of adjusting his status
based on the I-140 petition, Markovski learned of the order of
removal entered in absentia. Markovski moved to reopen his case, and
the immigration judge consented. However, the IJ denied the applica-
tion to adjust status, holding that Markovski was precluded from
adjusting his status on any basis other than through a petition filed by
his ex-wife. The IJ granted Markovski voluntary departure. The BIA
affirmed the IJ’s decision on November 1, 2005. This petition for
review followed.

II.

The petitioner presents three issues for our review.

1. Whether the IJ and the BIA misapplied 8 U.S.C. § 1255 of the
Immigration and Nationality Act;

2. Whether the BIA erred in not dismissing the case due to proce-
dural defects in the Notice to Appear;

3. Whether the BIA erred in not remanding the case due to the
IJ’s partiality.

III.

When the BIA affirms the IJ’s decision without an opinion, as here,
this court reviews the IJ’s decision. Camara v. Ashcroft, 378 F.3d
361, 366 (4th Cir. 2004). Legal conclusions are reviewed without def-
erence, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.
2004); however, an agency’s interpretation of the applicable statutes
is entitled to deference and must be accepted if reasonable. Chevron,
4 MARKOVSKI v. GONZALES
U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984). An agency’s
factual determinations are conclusive unless unreasonable. 8 U.S.C.
§ 1252(b)(4)(B). Our review is further limited by the REAL ID Act
which prohibits judicial review of the denial of discretionary relief to
the alien by the Attorney General. 8 U.S.C. § 1252(a)(2)(B). We do
retain the authority to pass on the alien’s legal and constitutional
claims. 8 U.S.C. § 1252(a)(2)(D).

IV.

Markovski’s primary argument rests on the proposition that the
INA, 8 U.S.C. § 1255, when read as a whole should be interpreted to
permit his application to adjust status based on employment. The
argument is not convincing.

"Under the most basic canon of statutory construction, we begin
interpreting a statute by examining the literal and plain language of
the statute." Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th
Cir. 1996). The court’s inquiry ends with the plain language as well,
unless the language is ambiguous. United States v. Pressley, 359 F.3d
347, 349 (4th Cir. 2004).

8 U.S.C. § 1255(d) of the INA reads in relevant portion:

The Attorney General may not adjust, under subsection (a)
of this section, the status of a nonimmigrant alien described
in section 1101 (a)(15)(K) of this title except to that of an
alien lawfully admitted to the United States on a conditional
basis under section 1186a of this title as a result of the mar-
riage of the nonimmigrant (or, in the case of a minor child,
the parent) to the citizen who filed the petition to accord that
alien’s nonimmigrant status under section 1101 (a)(15)(K)
of this title.

On its face, subsection (d) prohibits an alien who arrived on the
K-1 fiancé visa from adjusting his status on any basis whatever save
for the marriage to the K-1 visa sponsor. The language of the statute
is clear and speaks directly to the petitioner’s situation. Our duty is
to give the statutory language effect.
 MARKOVSKI v. GONZALES 5
Markovski attempts to get around the clear language of subsection
(d) by arguing that subsection (i) affords him relief. He is incorrect.
Subsection (i) allows for adjustment of status in certain situations
"[n]otwithstanding the provisions of subsections (a) and (c) of this
section." 8 U.S.C. § 1255(i)(emphasis added). As is evident from the
plain language of the statute, subsection (i) does not afford any relief
from the provisions of subsection (d). On this issue we agree with the
Ninth Circuit which has reached that same conclusion in Kalal v.
Gonzales, 402 F.3d 948 (9th Cir. 2005).

Markovski attempts to distinguish Kalal by arguing that the alien
in that case never married her sponsoring fiancé and instead married
a third party. During oral argument Markovski attempted to bolster
that position by citing to INS’ interim rule regarding adjustments
under subsection (i). See 59 Fed. Reg. 51,091. According to
Markovski, the interim rule explicitly excludes from provisions of
subsection (i) those immigrants who entered on a K-1 visa but failed
to marry their fiancé sponsor. 59 Fed. Reg. 51,091 ("An applicant
who was admitted to the United States as a K-1 fiance(e) but did not
marry the United States citizen who filed the petition, . . . is also
barred from adjusting status under section 245 of the Act.")(emphasis
added). The rule, however, is silent with respect to aliens in
Markovski’s situation, i.e., those who did marry their sponsors, but
later got divorced prior to the adjudication of their adjustment of sta-
tus petitions. According to Markovski, this omission is significant and
that by implication, he is not excluded from the provisions of subsec-
tion (i).

Markovski’s claim fails for two reasons. First, as explained above,
the language of the statute itself is not ambiguous and bars beneficia-
ries of the K-1 visa from adjusting status on any basis other than mar-
riage to the petition sponsor. The statute makes no distinction
between those aliens who got married and later divorced and those
who failed to get married altogether. Second, the sentence on which
Markovski relies is not even part of the rule, rather it is explanatory
background information. The actual interim rule begins on page
59,095 of the 59th volume of the Federal Register. Furthermore, since
the promulgation of the interim rule, it has been amended several
times. See 8 C.F.R. § 1245.10 ("History: 59 Fed. Reg. 51095, Oct. 7,
1994, as corrected at 59 Fed. Reg. 53020, Oct. 20, 1994; 62 Fed. Reg.
6 MARKOVSKI v. GONZALES
10312, 10384, March 6, 1997; 62 Fed. Reg. 39417, 39424, July 23,
1997; 62 Fed. Reg. 50999, 51000, Sept. 30, 1997; 62 Fed. Reg.
55152, 55153, Oct. 23, 1997; 66 Fed. Reg. 16383, 16388, Mar. 26,
2001; 68 Fed. Reg. 9824, 9842, 9846, Feb. 28, 2003; 68 Fed. Reg.
10349, 10357, Mar. 5, 2003"). The current version of the rule appears
at 8 C.F.R. § 1245.10. The current version does not make any distinc-
tions between those aliens who got married and later divorced and
those who failed to get married. Instead the final rule simply omits the
discussion of that topic altogether (perhaps relying on the clear lan-
guage of 8 U.S.C. § 1255(d)). Accordingly, we are of opinion that
there is no merit to Markovski’s argument.2

V.

Markovski’s remaining arguments are without merit. Markovski
alleges that the Notice to Appear and Certificate of Service were not
dated and therefore are procedurally defective. A review of the
record, however, establishes that both documents were dated with the
date of May 22, 2001. J.A. 329-30.

Finally, Markovski alleges that the IJ was biased against him
because during the hearing, the IJ suggested that the government
attorney read into the record the regulations applicable to
Markovski’s case "for the edification of the record." This argument
is without merit. The regulations in question are the governing law.
Whether or not they become part of the record would not in any way
change what the IJ was obligated to consider in reaching his decision.
In any event, an IJ is not considered prejudiced unless he demon-
strates a personal bias against a specific petitioner. See Matter of
Exame, 18 I. & N. Dec. 303, 306 (BIA 1982). Asking an attorney to
read regulations into the record does not indicate such bias.

2
We also reject Markovski’s reliance on Matter of Zampetis, 14 I. &
N. Dec. 125 (Reg’l Comm’r 1972). Zampetis was decided before Con-
gress enacted the prohibition on adjustment of status contained in
§ 1255(d) and therefore sheds no light on the meaning or applicability of
that statutory provision. To the extent that Zampetis may contradict the
mandate of § 1255(d), it is superceded by statute.
 MARKOVSKI v. GONZALES 7
Accordingly, the petition for review is

DENIED.