Case: 12-60169 Document: 00512229892 Page: 1 Date Filed: 05/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2013
No. 12-60169 Lyle W. Cayce
Clerk
ASIF MUHAMMAD DHUKA; SEEMA DHUKA, also known as FNU Seema;
ARIB DHUKA
Petitioners
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
This petition for review challenges the Board of Immigration Appeals’
determination that the petitioners could not adjust their status because for more
than 180 days, they had not been in “lawful status.” We conclude the BIA
properly defined “lawful status” and reasonably determined the petitioners had
failed to maintain theirs. The petition is DENIED.
Case: 12-60169 Document: 00512229892 Page: 2 Date Filed: 05/03/2013
No. 12-60169
FACTS AND PROCEDURAL HISTORY
The petitioners are Asif Muhammad Dhuka, his wife Seema Dhuka, and
their son, Arib. They are all citizens of Pakistan. On November 5, 2000, they
were admitted to the United States as nonimmigrant visitors with authorization
to remain until May 4, 2001. Asif Dhuka was approved as a nonimmigrant
multinational manager (L-1A visa) on August 3, 2001, and his wife and son as
dependents (L-2 visa), due to a petition from Dhuka Enterprises, Inc. Under
these visas, they could remain in the United States until August 2, 2004.
On November 28, 2003, the petitioners applied for adjustment of status
based on an I-140 petition filed by an alien relative on Dhuka’s behalf. On
September 2, 2005, the Department of Homeland Security (“DHS”) denied the
I-140 and the adjustment applications, explaining that “many items of
conflicting information” made it impossible to determine visa eligibility. On
October 3, 2005, the petitioners filed a motion to reopen and reconsider with
DHS, acknowledging that there had been errors in their submissions. DHS
denied the motion two weeks later.
Central to the BIA’s later analysis about the length of time that the
Dhukas were not in lawful status, their L-1A and L-2 visas expired in August
2004, a year before adjustment of status was denied in September 2005. As we
will explain, the filing of a petition for adjustment of status in 2003 meant that
until the petition was acted upon, the expiration of the visas in August 2004 did
not prejudice consideration of the petition. Because the petition was denied,
though, the BIA considers that the Dhukas were no longer in lawful status
beginning in August 2004 when the visas expired.
2
Case: 12-60169 Document: 00512229892 Page: 3 Date Filed: 05/03/2013
No. 12-60169
In March 2006, the petitioners once again applied for adjustment of status,
this time based on an I-140 petition filed on Seema Dhuka’s behalf, in which she
had employment arranged as a nurse. The petition was approved on September
19, 2006, making her eligible for an employment-based visa with a priority date
of February 28, 2006. Visa eligibility, though, has “retrogressed,” which results
when more people applied for a visa for a category of work or from a particular
country than there were visas allotted.
On October 3, 2007, DHS sent the petitioners a notice of intent to deny
their adjustment applications, explaining that it was unable to process their
applications without further information. Specifically, DHS requested evidence
showing that the petitioners maintained nonimmigrant status from November
17, 2000 (when they were admitted to the United States as nonimmigrant
visitors) through August 3, 2001 (when they changed status to L-1A and L-2
nonimmigrants) and from August 2, 2004 (when their L-1A and L-2
nonimmigrant status expired) through March 10, 2006 (when they filed their
second applications for adjustment of status).
On October 31, 2007, the petitioners filed a response to the notice of intent
to deny. On December 19, 2007, DHS concluded the petitioners were ineligible
for adjustment of status because they had failed to maintain continuous lawful
status since their entry into the United States, and were ineligible for an
exception to the continuous lawful status requirement because they were out of
status longer than 180 days, an exception we explain below. In particular, DHS
determined that, when the petitioners filed their second adjustment applications
on March 10, 2006, they had been out of status longer than 180 days because
3
Case: 12-60169 Document: 00512229892 Page: 4 Date Filed: 05/03/2013
No. 12-60169
their L-1A and L-2 nonimmigrant status had expired on August 2, 2004.1 The
petitioners’ motion to reconsider was denied.
On May 28, 2009, DHS served the petitioners with Notices to Appear,
charging them with removability under 8 U.S.C. § 1227(a)(1)(B), as aliens who
had remained in the United States longer than permitted. The petitioners
appeared with counsel before an immigration judge, conceded their removability,
and renewed their applications for adjustment of status based on Seema Dhuka’s
approved I-140 petition. The petitioners acknowledged, however, that no visa
was immediately available. Relying on Masih v. Mukasey, 536 F.3d 370, 374-75
(5th Cir. 2008), the petitioners argued that, if the immigration judge concluded
that they were adjustment eligible, the judge should hold their case in abeyance
until a visa became available. In our analysis, the visa-availability issue is
irrelevant because the Dhukas are ineligible for adjustment of status.
Through a series of filings and hearings, the issue was joined about the
meaning of “lawful status,” which the Dhukas concede they must have
sufficiently maintained to be eligible for the relief they seek. On May 19, 2010,
the immigration judge denied the petitioners’ applications for adjustment of
status. The immigration judge concluded that the petitioners failed to maintain
continuous lawful status since their entry into the United States and failed to
qualify for any exception to the requirement.
1
As we will discuss later, 8 U.S.C. § 1255(k) provides for an exception to the continuous
lawful status requirement in 8 U.S.C. § 1255(c)(2) when the alien applying for an adjustment
of status has not been out of status for more than 180 days. The petitioners argue that they
filed their second adjustment applications on March 1, 2006, 179 days after DHS denied their
first applications on September 2, 2005, but that DHS improperly rejected the applications on
March 3, 2006, requesting evidence that a visa was immediately available, before ultimately
accepting their applications on March 10. In light of our ruling, it does not matter whether the
March 2006 filing was made less than 180 days after the earlier denial.
4
Case: 12-60169 Document: 00512229892 Page: 5 Date Filed: 05/03/2013
No. 12-60169
The petitioners timely appealed the immigration judge’s decision to the
BIA. On February 3, 2012, in an unpublished three-member panel decision, the
BIA dismissed the petitioners’ appeal and reinstated the immigration judge’s
voluntary departure order. The BIA agreed with the immigration judge’s
determination that the petitioners were ineligible for adjustment of status due
to the long period of time in which they were not in lawful status.
A timely petition for review was filed with this court.
DISCUSSION
There are no contested facts in this case, only contested applications of
those facts to a few relevant concepts under immigration law. What the Dhukas
have sought since 2003 is an adjustment of their status from that of individuals
whose right to be in the United States is based on a nonimmigrant work visa and
as dependents, to being permanent residents. The pursuit of an adjustment of
status began in 2003, when the company at which Asif Dhuka worked filed an
I-140 petition seeking an immigrant visa for him so he could continue to work
with the company as a manager and executive. Related petitions were filed for
his wife and child as dependents.
The BIA held that the Dhukas’ lawful status under those visas ended in
August 2004, but the expiration of the visas had no repercussions on their effort
to adjust their status until the adjustment applications were denied in
September 2005. The legal effect of what has occurred beginning with that
September 2005 denial is the dispute brought to us.
The primary statute in play is the one governing adjustments in status of
a foreign national who lawfully entered as a nonimmigrant (i.e., someone
visiting without the intent to remain permanently) to the status of someone
5
Case: 12-60169 Document: 00512229892 Page: 6 Date Filed: 05/03/2013
No. 12-60169
admitted for permanent residency. See 8 U.S.C. § 1255. An adjustment of status
is not available to someone “who is in unlawful immigration status on the date
of filing the application for adjustment of status or who has failed (other than
through no fault of his own or for technical reasons) to maintain continuously a
lawful status since entry into the United States . . . .” 8 U.S.C. § 1255(c)(2).
The BIA accepted that the period from the expiration of the work visas in
August 2004 until the denial of the petitions for adjustment of status in
September 2005 did not create a problem under Section 1255. That point was
addressed in Matter of L-K, 23 I. & N. Dec. 677, 680 (BIA 2004). There, the BIA
held that being out of lawful status could be considered a “technical violation”
under Section 1255(c)(2) when a petition for adjustment of status was filed
before the lawful status ended and the petition was not ruled upon prior to the
expiration of the visa or other authorization; the technical reason was at an “end
when the DHS acts other than favorably on” the pending application.2 Id.
The BIA has by regulation given examples of a “technical violation”:
A technical violation resulting from inaction of the Service (as for
example, where an applicant establishes that he or she properly
filed a timely request to maintain status and the Service has not yet
acted on that request). An individual whose refugee or asylum
status has expired through passage of time, but whose status has
not been revoked, will be considered to have gone out of status for
a technical reason.
2
The BIA said its holding was “narrow and limited to the factual scenario at issue in
this case.” Matter of L-K, 23 I. & N. Dec. at 682. The Matter of L-K “scenario” was an asylum
application. Asylum can be terminated for a variety of reasons, including that a well-founded
fear of persecution no longer exists. See 8 C.F.R. § 1208.24(a)(3). An adjustment of status is
not contingent in that way. There may well be other differences, but Matter of L-K is accepted
by the parties as a proper explanation of why the time from August 2004 when the Dhukas
visa expired, to September 2005 when adjustment of status was denied, was inconsequential
to their then-pending applications. For today’s purposes, we accept what no party disputes.
6
Case: 12-60169 Document: 00512229892 Page: 7 Date Filed: 05/03/2013
No. 12-60169
8 C.F.R. § 1245.1(d)(2)(ii).
The Dhukas insist that the technical reasons should cause the lawfulness
of their status to continue until the application for adjustment was denied. The
BIA, though, concludes that the technical reasons do not transform the period
after visa expiration into “lawful status,” but those reasons only prevent the
applicants from becoming ineligible for adjustment because they are no longer
in lawful status. Once the application was denied, the BIA measured their
period of being out of lawful status as starting when the visas expired in August
2004. The wording of Section 1255(c)(2), that an applicant “has failed (other
than . . . for technical reasons) to maintain continuously a lawful status,”
addresses the effect of being out of lawful status without redefining a technically
violative status as lawful.
The Dhukas disagree. They argue that their stay remained “authorized”
after that date, which in their view is equivalent to being in lawful status. They
rely on language in 8 U.S.C. § 1182(a), which is entitled “Classes of aliens
ineligible for visas or admission.” A subsection of that statute sets rules for, as
the section and subsection titles state, “Aliens previously removed,” and “Aliens
unlawfully present.” 8 U.S.C. § 1182(a)(9)(B). In that statute is a definition that
the Dhukas argue applies to their circumstances.
(ii) Construction of unlawful presence:
For purposes of this paragraph, an alien is deemed to be unlawfully
present in the United States if the alien is present in the United
States after the expiration of the period of stay authorized by the
Attorney General or is present in the United States without being
admitted or paroled.
7
Case: 12-60169 Document: 00512229892 Page: 8 Date Filed: 05/03/2013
No. 12-60169
8 U.S.C. § 1182 (a)(9)(B)(ii). Logically enough, the Dhukas posit that someone
has “lawful status” under Section 1255(c)(2) if that person is not yet “unlawfully
present” under Section 1182(a), and unlawful presence has not occurred when
the alien has been authorized by the Attorney General to stay. They say they
were authorized while their application for adjustment of status was pending
and did not lose lawful status until the application was denied. This question
is one of statutory interpretation, and both phrases are in the Immigration and
Nationality Act.
An executive branch agency’s interpretations of the statutes that it is
authorized to administer may be entitled to the deference identified under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842 (1984). Deciding whether deference is due begins with an examination of
whether there is ambiguity in the statute; if there is, the agency’s explanation
must be a reasonable one. Id.
The BIA’s opinion in the present case was issued by a three-member panel,
but it was not designated as precedential. As we will show, some of our sister
circuits have declared that certain opinions of the BIA are not to be accorded
Chevron deference and instead are to be given weight only under Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944). Under this standard, the “weight of such
a judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking
power to control.” Id. The other circuits have dealt with opinions by a single
BIA member, but the courts’ analysis has relied on the fact the opinion was not
precedential. That also is the case with many three-member decisions.
8
Case: 12-60169 Document: 00512229892 Page: 9 Date Filed: 05/03/2013
No. 12-60169
Focusing on the precedential nature of the BIA decision is fairly recent.
What apparently was an unpublished BIA opinion was given Chevron deference
in I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). See Brief for Respondent
at 23, I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754), 1999 WL
26721 (stating that BIA decision was unpublished). Subsequently, the Supreme
Court sharpened its focus in this area by holding that Chevron deference is
allowed only when the agency action “carr[ies] the force of law”:
We hold that administrative implementation of a particular
statutory provision qualifies for Chevron deference when it appears
that Congress delegated authority to the agency generally to make
rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that
authority.
United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). The Mead opinion
recognized that “agencies charged with applying a statute necessarily make all
sorts of interpretive choices, and while not all of those choices bind judges to
follow them,” an agency’s reasoned views are entitled to respectful consideration.
Id. at 227. Thus, a court’s analysis of whether Chevron deference applies has a
predicate requirement that the agency have issued its interpretation in a
manner that gives it the force of law.
We examine how the BIA gives such force to its decisions. The procedures
applicable to appeals from the rulings of immigration judges permit a single
member of the BIA or a three-member panel to decide the appeal. 8 C.F.R. §
1003.1(d) & (e). The regulation does not recognize single-member decisions as
having precedential effect and also provides a procedural mechanism by which
panel decisions may be given precedential force:
9
Case: 12-60169 Document: 00512229892 Page: 10 Date Filed: 05/03/2013
No. 12-60169
Decisions as precedents. Except as Board decisions may be modified
or overruled by the Board or the Attorney General, decisions of the
Board, and decisions of the Attorney General, shall be binding on all
officers and employees of the Department of Homeland Security or
immigration judges in the administration of the immigration laws
of the United States. By majority vote of the permanent Board
members, selected decisions of the Board rendered by a three-
member panel or by the Board en banc may be designated to serve
as precedents in all proceedings involving the same issue or issues.
Selected decisions designated by the Board, decisions of the
Attorney General, and decisions of the Secretary of Homeland
Security to the extent authorized in paragraph (i) of this section,
shall serve as precedents in all proceedings involving the same issue
or issues.
8 C.F.R. § 1003.1(g).3 The opinion on the Dhukas’ appeal was not so designated.
We review the analysis of a few of the other circuits. The Tenth Circuit
cited Section 1003.1(g) and held that a single-member decision was not entitled
to Chevron deference because it was not precedential at the BIA. Carpio v.
Holder, 592 F.3d 1091, 1097 (10th Cir. 2010). Similarly, the Ninth Circuit held
that “because the BIA’s decision was an unpublished disposition, issued by a
single member of the BIA, which does not bind third parties, we conclude that
it does not carry the force of law.” Garcia–Quintero v. Gonzales, 455 F.3d 1006,
1012 (9th Cir. 2006). Chevron deference was rejected, and the court then
concluded that the decision was unpersuasive under Skidmore. Id. at 1013-19.
The Eighth Circuit was more tentative, stating its concern that the BIA opinion
3
The regulation at the time of the BIA’s Aguirre-Aguirre decision in 1996 was similar
but without the explanation as to how a decision was made precedential: “Except as they may
be modified or overruled by the Board or the Attorney General, decisions of the Board shall
be binding on all officers and employees of the Service or Immigration Judges in the
administration of the Act, and selected decisions designated by the Board shall serve as
precedents in all proceedings involving the same issue or issues.” 8 C.F.R. § 3.1(g) (1996).
10
Case: 12-60169 Document: 00512229892 Page: 11 Date Filed: 05/03/2013
No. 12-60169
it was reviewing was unpublished and thus might not have the “force of law,”
though the less generous Skidmore standard might be appropriate.
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850-51 (8th Cir. 2008).
The BIA’s opinion in this case was by a three-member panel. Though it
was not designated to serve as one of the “precedents in all proceedings involving
the same issue or issues,” it is “binding on all officers and employees of the
Department of Homeland Security or immigration judges in the administration
of the immigration laws of the United States.” 8 C.F.R. § 1003.1(g). Our issue,
then, is whether such a decision has the “force of law” as required by Mead. We
view the key here as being whether the BIA decision made law that binds third
parties. See Garcia-Quintero, 455 F.3d at 1012 (explaining that the central issue
is “whether the BIA’s decision has a ‘lawmaking pretense’ that binds third
parties.”). Even a single-member decision is considered to be by the “Board,”4
and would be included in Section 1003.1(g)’s directive that “decisions of the
Board . . . shall be binding on all officers and employees of the Department” and
immigration judges. Thus, three-member decisions not designated as precedent
have no more force under this regulation than single-member decisions. We
conclude that a non-precedential opinion of the BIA does not, due to the terms
of the regulation itself, bind third parties and is not entitled to Chevron
deference. Even so, it will be examined closely for its power to persuade.
Controlling prior BIA decisions that the BIA cited will be given Chevron
deference as appropriate.
4
See, e.g., 8 C.F.R.§ 1003.1(e)(4)(ii) (“If the Board member determines that the decision
should be affirmed without opinion, the Board shall issue an order that reads as follows: ‘The
Board affirms, without opinion, the result of the decision below. The decision below is,
therefore, the final agency determination.’”)
11
Case: 12-60169 Document: 00512229892 Page: 12 Date Filed: 05/03/2013
No. 12-60169
The relevant statutes are ambiguous on the issue we face. The BIA
determined that the phrase “lawful status” under Section 1255(c) should not be
synonymous with the phrase “period of stay authorized by the Attorney
General,” as set forth in Section 1182(a)(9). One reason was that because
Congress used one phrase in one section and another phrase in another section,
some distinguishable meanings likely would have been intended. The BIA cited
two precedents in which the Supreme Court emphasized that we should give the
ordinary meaning to the word choices Congress makes in statutes. I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987); I.N.S. v. Phinpathya, 464 U.S. 183,
189 (1984). We conclude that “lawful status” implies a right protected by law,
while “authorized by the Attorney General” describes an exercise of discretion
by a public official. So strictly as a matter of definitions of terms, giving a
different meaning to the two phrases is logical. The proper meaning still needs
to be determined.
The BIA also stated it was bound by the implementing regulations
corresponding to the relevant portions of the controlling statute, which had the
force of law. It cited its own precedential, en banc opinion for that proposition:
Matter of Ponce de Leon-Ruiz, 21 I. & N. Dec. 154, 158 (BIA 1996) (certified by
Attorney General under what is now 8 C.F.R. § 1003.1(h)).
The BIA noted that, with one exception not relevant here, the phrase
“lawful immigration status,” as set out in its regulation that defines eligibility
for adjustment of status, did not include any period during which an adjustment
application was pending:
(1) Lawful immigration status. For purposes of section [1255(c)(2)],
the term “lawful immigration status” will only describe the
immigration status of an individual who is:
12
Case: 12-60169 Document: 00512229892 Page: 13 Date Filed: 05/03/2013
No. 12-60169
(i) In lawful permanent resident status;
(ii) An alien admitted to the United States in nonimmigrant status as
defined in section 101(a)(15) of the Act, whose initial period of admission
has not expired or whose nonimmigrant status has been extended in
accordance with part 214 of this chapter;
(iii) In refugee status under section 207 of the Act, such status not having
been revoked;
(iv) In asylee status under section 208 of the Act, such status not
having been revoked;
(v) In parole status which has not expired, been revoked or
terminated; or
(vi) Eligible for the benefits of Public Law 101–238 (the Immigration
Nursing Relief Act of 1989) and files an application for adjustment
of status on or before October 17, 1991.
8 C.F.R. § 245.1(d)(1). This list does not imply that there is an additional kind
of lawful status, which is to have a pending application for status adjustment.
The BIA went further to say that even if “lawful immigration status” could
include some additional classes of aliens, it was limited in this case by the Fifth
Circuit’s rejection of “a definition of the term so broad as to include all
individuals with some form of permission to remain in the United States and
authorization to work in this country.” See Bokhari v. Holder, 622 F.3d 357,
360-61 (5th Cir. 2010); United States v. Flores, 404 F.3d 320, 327-28 (5th Cir.
2005). Likewise, the BIA noted that both this court’s and its own precedents
indicated that the mere pendency of an application to change, extend, or adjust
status did not confer “lawful immigration status” on an alien. See Bokhari, 622
F.3d at 360-61; Matter of Teberen, 15 I. & N. Dec. 689 (BIA 1976).
The analysis so far has largely relied upon precedential decisions of the
BIA, the Supreme Court, and this court. We conclude that the BIA’s analysis we
have discussed so far is a reasonable construction of the two statutory phrases
13
Case: 12-60169 Document: 00512229892 Page: 14 Date Filed: 05/03/2013
No. 12-60169
that gives meaning to each. The BIA’s precedential decisions on which its
current analysis relies are entitled to Chevron deference, and the Supreme Court
and Fifth Circuit precedents are controlling.
The final part of the analysis is not moored to such precedents, and it
requires a more searching review. The BIA found no clear error in the
immigration judge’s factual determination that, when the petitioners filed their
second adjustment applications in 2006, the petitioners had been out of status
longer than 180 days because their L-1A and L-2 visas had expired on August
2, 2004. The BIA relied on a 2008 memo issued by David Neufeld,5 the Acting
Associate Director of United States Citizenship and Immigration Services
(“USCIS”). The Neufeld Memo discussed an exception to the requirement that
an alien filing for adjustment of status have a continuous lawful status. For
those seeking certain immigrant visas who entered the country lawfully, it was
sufficient that they not be out of lawful status for more than periods that
aggregate to 180 days:
(k) Inapplicability of certain provisions for certain employment-
based immigrants
An alien who is eligible to receive an immigrant visa under
paragraph (1), (2), or (3) of section 1153(b) of this title (or, in the
case of an alien who is an immigrant described in section
1101(a)(27)(C) of this title, under section 1153(b)(4) of this title) may
adjust status pursuant to subsection (a) of this section and
notwithstanding subsection (c)(2), (c)(7), and (c)(8) of this section, if--
(1) the alien, on the date of filing an application for adjustment of
5
Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Operations,
HQDOMO 70/23.1-P (July 14, 2008), reprinted in 85 Interpreter Releases 2097, 2136 (Aug. 4,
2008).
14
Case: 12-60169 Document: 00512229892 Page: 15 Date Filed: 05/03/2013
No. 12-60169
status, is present in the United States pursuant to a lawful
admission;
(2) the alien, subsequent to such lawful admission has not, for an
aggregate period exceeding 180 days--
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of the alien’s
admission.
8 U.S.C. §1255(k).
The USCIS, through the Neufeld Memo, explained how to count the 180
days in situations where an alien was in a valid nonimmigrant status when he
filed for adjustment (as Asif Dhuka was in November 2003), the nonimmigrant
status expired during the pendency of the application, and then the adjustment
application was denied. Though the expiration of lawful status would not affect
a pending application for adjustment, once the Dhukas’ application was denied,
the proper date for determining when lawful status ended was the long-past date
of August 2004. For the Dhukas’ new application, the first day they were out of
lawful status was in August 2004 and the last was in March 2006 when the new
application was filed. If the Neufeld Memo is a valid interpretation of Section
1255(k), the second application was a year late.
The BIA agreed with the Neufeld Memo, finding it to be “useful,
persuasive guidance” for interpreting Section 1255(k). Because neither the BIA
opinion as to Dhuka nor the Neufeld Memo is owed Chevron deference, we must
decide if the BIA analysis persuades.
The BIA acknowledged that Section 245.1(d)(1) of the regulations defines
“lawful immigrant status” for purposes of Section 1255(c). Subsection (c)(2)
identifies those who are not eligible for adjustment of status, including someone
15
Case: 12-60169 Document: 00512229892 Page: 16 Date Filed: 05/03/2013
No. 12-60169
“who has failed (other than through no fault of his own or for technical reasons)
to maintain continuously a lawful status since entry into the United States . . .
.” 8 U.S.C. § 1255(c)(2). Section 1255(k) has a related purpose. It states that
notwithstanding the requirement of a continuous presence in a lawful status
stated in subsection (c)(2), a person lawfully admitted who is eligible to receive
certain employment-related visas may adjust status so long as the alien has not
for an aggregate of more than 180 days failed to be in a lawful status, along with
two other requirements not relevant here. 8 U.S.C. § 1255(k). Certainly “lawful
status” in subsection (k) is concerned with the same kind of status – indeed,
there is a cross-reference – as the earlier subsection (c).
We agree with the BIA that even though there were no regulations
specifically drafted for Section 1255(k), the definition of “lawful immigrant
status” applicable to Section 1255(c) is relevant. As we have already noted, the
implementing regulation defining “lawful status” for Section 1255(c) does not
include a general category of aliens whose lawful status expired during the
pendency of an application to adjust their status. Another circuit reached a
similar conclusion, holding that the definition of “lawful status” set out in the
regulations “forecloses the argument that a ‘period of stay authorized by the
Attorney General’ might also constitute ‘lawful status’ for purposes of Section
1255.” Chaudhry v. Holder, 705 F.3d 289, 292 (7th Cir. 2013).
The BIA found that although “lapses in lawful status may be excused
where USCIS’s delay in adjudicating an application causes the alien to be unable
to demonstrate maintenance of status[,] . . . where USCIS denies any such
extension, change, or adjustment of status, the alien can no longer be deemed to
have ‘maintained’ lawful status during any period in which only the application
16
Case: 12-60169 Document: 00512229892 Page: 17 Date Filed: 05/03/2013
No. 12-60169
for benefits was pending and he did not hold some other status.” The BIA relied
on Matter of L-K, 23 I. & N. Dec. at 680, concluding that “this construction of
‘lawful status’ form[ed] a parallel to the Neufeld Memo’s examples for how to
calculate the 180-day period for purposes” of Section 1255(k). It is also relevant
that the BIA’s analysis of Section 1255(k) is a reasonable one because a different
interpretation would extend almost indefinitely the 180-day grace period of
being out of lawful status – as indefinite as is allowed by the speed with which
a renewed application could be filed after the denial of a previous one. We agree
with the BIA that its view is the best one of the meaning of “lawful status.”
Lastly, the BIA held there was no reason to hold the case in abeyance due
to the fact that Seema Dhuka had her I-140 petition approved and had a current
visa priority date at the time she filed for adjustment of status, but her visa
priority date had retrogressed since approval. There is caselaw that if a
retrogression in visa priority date is all that prevents adjustment of status, the
case should be held. Masih, 536 F.3d at 373. The foregoing analysis indicates
that the problem is not only the retrogression in visa priority. It is that these
petitioners were out of lawful status for more than 180 days.
The petition for review is DENIED.
17