Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-16-2006
Myysarosh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4502
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4502
IVAN MYYSAROSH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for review of a Decision
of the Board of Immigration Appeals
(BIA No. A78 685 907)
Immigration Judge: Charles M. Honeyman
Submitted under Third Circuit LAR 34.1(a)
November 9, 2006
BEFORE: SLOVITER, CHAGARES, and GREENBERG, Circuit Judges
(Filed: November 16, 2006)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on a petition for review of a decision of the
Board of Immigration Appeals entered September 9, 2005, dismissing an appeal from a
decision of an immigration judge. Even though the petitioner Ivan Myysarosh, who had
unlawfully entered this county without inspection, initially sought relief by obtaining
asylum or the withholding of removal as well as relief under the Convention Against
Torture, ultimately his application evolved into an effort to obtain relief through an
adjustment of his status in this country because the United States Department of Labor
approved his Labor Certification. In seeking this relief he asked the BIA to remand his
case to the IJ for further proceedings. The BIA rejected his remand application in its
September 9, 2005 decision, pointing out that the decision on which Myysarosh relied,
Matter of Velarde-Pacheco, 23 I & N Dec. 253 (BIA 2002), dealt with adjustment of
status because of marriage and thus was inapplicable. Myysarosh then filed his petition
for review. We exercise jurisdiction under 8 U.S.C. § 1252.
Subsequently, Myysarosh asked the BIA to reconsider its decision. In his motion
Myysarosh argued that the IJ mistakenly denied a request for a continuance that he sought
so that he could obtain an adjustment of status. In support of his argument, he predicated
his application for an adjustment of status on “currently pending legislation in US
Congress combined with the fact that [he] is a beneficiary of an approved Labor
Certification application.” App. at 9. In this regard he contended that “it is unfair and
unjust, and also an abuse of discretion for this court to grant continuances to applicants
with Labor Certification to 04/30/01, but to deny such relief for those Labor
Certifications [that] are filed after 04/30/01 when I-140 is not approved in either case and
only partial eligibility for eventual adjustment is shown.” Id. The reference to I-140 is to
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an immigrant visa petition.
Myysarosh’s motion for reconsideration referenced April 30, 2001, for the
following reason: INA § 245(i)(1), 8 U.S.C. § 1255(i)(1), authorizes some aliens who
were ineligible to adjust their status in this country to pay a penalty for the convenience of
adjusting their status without leaving the country. Section 245(i) originally had a sunset
date of September 31, 1997, but Congress subsequently extended that date until April 30,
2001. See Pub. L. 106-554, 114 Stat. 2763, 2763A-324. Myysarosh does not claim that
Congress has extended the date again and so far as we are aware it has not done so. Even
though section 245(i) has expired, it remains viable as to “grandfather” applications for
aliens who had labor certifications filed on their behalf on or before April 30, 2001. This
grandfather treatment is subject to the application having been approvable when filed.
See INA § 245(i)(1)(B)(ii), 8 U.S.C. § 1255(i)(1)(B)(ii); 8 C.F.R. § 1245.10(a)(1)(i)(B).
Myysarosh, however, faced an unsurmountable barrier to obtaining relief under
INA § 245(i) because his labor certification was filed on June 23, 2003. His reference to
“pending legislation” was to an attempt in Congress to extend the April 30, 2001 date.
On November 3, 2005, the BIA understandably denied Myysarosh’s motion to reconsider,
pointing out that his “speculative future eligibility for adjustment of status failed to
establish good cause for a continuance of his removal proceedings.” App. at 2.
Myysarosh has not filed a petition for review of that decision.
We are at a loss to understand the basis for a petition for review in this case. The
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Attorney General correctly observes that Myysarosh simply is not eligible for relief
because his labor certification was filed more than two years too late to satisfy the INA §
245(i) deadline. In these circumstances a continuance or a remand would be pointless
and thus we certainly will not hold that the BIA erred in denying Myysarosh relief. While
we recognize that Myysarosh hopes for a favorable statutory change, courts and
administrative tribunals need not predicate their decisions on speculation about what
unenacted statutes might provide. Accordingly, no matter what standard of review we
apply here we are constrained to deny the petition for review.
The petition for review of the decision of the BIA of September 9, 2005, will be
denied.
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