Seung Lyong Sung v. Keisler

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 22, 2007

No. 06-60539 Charles R. Fulbruge III
Clerk

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
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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) of the 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 employment is 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

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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 court turned
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),

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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.1 Id. The court
explained that “this result is contrary to the plain language of the 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

1
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.

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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.

2
In remanding, we express no opinion regarding the proper resolution of the
adjustment of status application.

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