Butt v. Gonzales, No. 05-3270 (2d Cir. 2007)

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The court issued a subsequent related opinion or order on September 12, 2007.

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05-3270-ag Butt v. Gonzales 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term 2006 Submitted: May 8, 2007 Decided: August 23, 2007 Last supplemental brief filed: July 30, 2007 Docket No. 05-3270-ag --------------------------------------------------X MUHAMMAD BUTT, Petitioner, - against ALBERTO GONZALES, United States Attorney General, Respondent. --------------------------------------------------X Before: FEINBERG, CALABRESI, and WESLEY, Circuit Judges. Petitioner, who intends to seek adjustment of status if and when an employment-based immigrant visa becomes available to him, seeks review of a decision of the Board of Immigration Appeals affirming a decision of the Immigration Judge denying petitioner s request for a continuance while his employer s application for a labor certification was pending. We grant the petition, vacate the BIA s decision, and remand the case for the BIA to consider antecedent questions regarding petitioner s eligibility for adjustment of status. LARISA TENBERG (Christina L. Harding, on the brief), Gallagher, Malloy & Georges, P.C., Philadelphia, PA, for Petitioner. LAURA MCMULLEN FORD, Special Assistant United States Attorney, (Gregory A. White, United States Attorney, on the brief), United 1 2 3 4 States Attorney s Office for the Northern District of Ohio, for Respondent. FEINBERG, Circuit Judge: 5 Petitioner Muhammad Butt, who intends to seek adjustment of 6 status if and when an employment-based immigrant visa becomes 7 available to him, seeks review of a June 9, 2005, decision of the 8 Board of Immigration Appeals ( BIA ) affirming a January 9, 2004, 9 decision of the Immigration Judge ( IJ ) denying Butt s 10 application for a continuance of his removal proceeding and 11 ordering him removed. 12 discretion 13 application for a labor certification, which must be approved 14 before Butt may seek an employment-based immigrant visa, was 15 pending. 16 the BIA to consider, in the first instance, antecedent questions 17 regarding 18 answers to which may bear on any subsequent consideration of 19 whether the IJ abused her discretion in denying the continuance. 20 I. BACKGROUND 21 22 in denying Butt argues that the IJ abused her the continuance while his employer s But before reaching that issue, we remand the case to Butt s eligibility for adjustment of status, the Butt, a native and citizen of Pakistan, entered the United States without inspection in 1 February 2000,1 and shortly As discussed below, the Government contends in its supplemental brief that Butt may not have been physically present in the U.S. on December 21, 2000. It is unclear whether the Government is thus contending that Butt may not have entered in February 2000. But the Government has conceded that any -2- 1 thereafter sought to adjust his status to that of a lawful 2 permanent resident under 8 U.S.C. § 1255. 3 detail below, because Butt entered without inspection, he may 4 apply for adjustment of status only if he is grandfathered as 5 the 6 classification under section 204 of the Immigration & Nationality 7 Act 8 certification 9 Furthermore, he must establish that he was physically present beneficiary ( INA ) or of a under either a timely-filed timely-filed section As set forth in more application 212(a)(5)(A) petition for of 8 U.S.C. § 1255(i)(1)(C). for a labor the INA. 10 here on December 21, 2000. Then, if 11 grandfathered, he may apply for adjustment of status under id. § 12 1255(i)(2). 13 Butt first sought grandfathering and adjustment of status on 14 the basis of a section 204 petition for classification filed by 15 his wife. 16 shortly thereafter, his wife filed a form I-130 petition to 17 classify Butt as an alien relative, and he filed a form I-485 18 application to adjust status on the ground that his wife had 19 filed the form I-130. He married a U.S. citizen on April 6, 2001, and, Both the I-130 and the I-485 were denied inconsistency is likely a typographical error, and its responsive brief stated that Butt entered the country in February 2000, as does the Notice to Appear sent to Butt. In any event, except as discussed in Section II.A.1, infra, Butt s date of entry is not relevant to the disposition of this appeal. -3- 1 on May 30, 2003, apparently because Butt was a no show and thus 2 defaulted. 3 Joint Appendix 58, 61. The Immigration and Naturalization Service commenced removal 4 proceedings in July 2003. 5 hearing, the IJ ordered him removed to Pakistan. 6 Butt moved to reopen the removal proceedings, and the IJ granted 7 the motion. 8 adjustment 9 immigrant visa, and that the prerequisite application for a labor 10 certification, filed by Butt s employer on or about December 30, 11 2003 12 pending.2 13 proceedings while the application was pending. The IJ denied the 14 request 15 certification isn t grounds for an adjournment, particularly 16 considering how long labor certifications take and there s no 17 guarantee that they ll be approved. and After Butt failed to appear for a Subsequently, Butt then advised the IJ that he intended to seek of status accepted He because on for then the the basis processing requested fact a that 2 of on an January continuance there employment-based is a 7, of 2004, his was removal [pending] labor Because Butt did not apply The process through which an alien pursues employmentbased adjustment of status is as follows: First, the alien s prospective employer must file an application for a labor certification. If the Department of Labor certifies the application, the alien s prospective employer must then file a Form I-140, Immigrant Petition for Alien Worker, accompanied by the Labor Certification. If the Petition is approved, the alien, who must be residing in the U.S., must file a Form I-485 Application to Register Permanent Residence or Adjust Status. See Lendo v. Gonzales, No. 05-1715, -- F.3d --, 2007 WL 1982038 at *2 (4th Cir. July 10, 2007). -4- 1 for and was ineligible for any other form of relief, the IJ found 2 him removable and ordered him removed to Pakistan. 3 noted, the BIA affirmed without opinion in June 2005. Butt filed 4 a timely petition for review of that decision.3 5 II. As already ANALYSIS 6 Before us, the parties have principally argued whether it 7 was an abuse of discretion for the IJ to deny a continuance while 8 the application for a labor certification was pending. 9 decline to consider that question at this time and instead remand 10 the case to the BIA to consider antecedent questions regarding 11 Butt s eligibility for adjustment of status, the answers to which 12 may bear on any subsequent consideration of whether the IJ abused 13 her discretion in denying the continuance. But we 14 As noted above, because Butt entered without inspection, he 15 may apply for adjustment of status only if he is grandfathered 16 under 8 U.S.C. § 1255(i)(1). 17 grandfathered, the alien must be the beneficiary of either a 18 petition for classification under section 204 of the INA, id. § 19 1154, filed on or before April 30, 2001, id. § 1255(i)(1)(B), or 20 an application for a Id. § 1255(i)(1)(A)(i). labor 3 certification under To be section After this matter was fully briefed before us, the Department of Labor granted Butt s labor certification on October 10, 2006. Butt s prospective employer then filed the I140 petition on October 31, 2006. The record is unclear as to whether Butt thereafter filed an I-485 application. -5- 1 212(a)(5)(A) of the INA, id. § 1182(a)(5)(A), filed on or before 2 April 30, 2001, id. § 1255(i)(1)(B). 3 petition or application was filed after January 14, 1998, the 4 alien must have been physically present in the U.S. on December 5 21, 2000. 6 alien may apply for adjustment of status, which the Attorney 7 General may grant if the alien pays a fine filing fee of 8 $1,000, id. § 1255(i)(1), and (A) the alien is eligible to 9 receive an immigrant visa and is admissible to the United States 10 for permanent residence; and (B) an immigrant visa is immediately 11 available to the alien at the time the application is filed, id. 12 § 1255(i)(2). Id. § 1255(i)(1)(C). In addition, if the Then, once grandfathered, the 13 We remand to the BIA to consider (A) Whether Butt is 14 grandfathered, viz. (1) whether Butt was physically present in 15 the United States on December 21, 2000, and (2) whether the 16 section 204 petition for classification benefitting Butt was 17 approvable 18 245.10(a)(1)(i)(A) and (B) if Butt is in fact grandfathered on 19 the basis of the section 204 petition for classification, whether 20 he may then seek adjustment of status under 8 U.S.C. § 1255(i) on 21 the basis of an employment-based immigrant visa?4 when filed, as 4 required by 8 C.F.R. § By order dated July 11, 2007, we directed the parties to provide supplemental briefing addressing whether we should remand the case to the BIA to address (A)(2) and (B). The last of these briefs was filed on July 30, 2007. -6- 1 Simply put, if Butt is not grandfathered or if he may not 2 apply for adjustment of status on a basis other than an approved 3 section 204 petition for classification, he is ineligible for 4 adjustment of status. Accordingly, we grant the petition, vacate 5 the BIA s decision, and remand the case to the BIA to consider 6 7 8 9 10 11 12 13 14 these questions in the first instance. 15 whether Butt was physically present in the U.S. on December 21, 16 2000. 17 benefitting 18 grandfathered, Butt must show that he was physically present in 19 the U.S. on December 21, 2000. 20 C.F.R. § 245.10(n) clarifies that the alien bears the burden of 21 proof on this question and specifies particular types of evidence 22 that will satisfy it. A. Whether Butt is grandfathered under 8 U.S.C. § 1255(i)(1)? 1. Was Butt physically present in the United States on December 21, 2000? First, we remand the case to the BIA for a finding on Because the section 204 petition for classification Butt was filed after January 14, 1998, to 8 U.S.C. § 1255(i)(1)(C). be 8 23 In its supplemental brief, the Government argues that Butt 24 has not met his burden because there is no evidence in the 25 record, of the sort sanctioned by 8 C.F.R. § 245.10(n), that 26 establishes his physical presence in the U.S. on December 21, 27 2000. 28 classification and corresponding adjustment of status application Furthermore, while the -7- section 204 petition for 1 claim that Butt entered the U.S. on February 14, 2000, and the I- 2 862 Notice to Appear states that he entered the U.S. on or about 3 February 28, 2000, the I-140 employment-based visa petition filed 4 by Butt s employer states that he entered on April 6, 2001 5 (though the Government concedes that this date, which is the date 6 on which Butt married his wife, is probably a typographical 7 error, see Gov t Supp. Ltr. Br., dated July 18, 2007, at 3-4). 8 Butt 9 submission. does not address this argument in his supplemental 10 If Butt was not physically present on December 21, 2000, he 11 is not grandfathered, and if he is not grandfathered, he is 12 ineligible for adjustment of status. 13 made a finding on this question, we remand the case to the BIA to 14 do so (and to remand to the IJ if necessary). 2. Because the agency has not 15 16 17 18 Was Butt s section 204 petition classification approvable when filed ? Second, we remand the case to the BIA to determine whether 19 the section 204 petition for classification benefitting Butt was 20 approvable 21 245.10(a)(1)(i)(A). when filed within the meaning of 8 for C.F.R. § 22 As noted, to apply for adjustment of status as an alien who 23 entered the U.S. without inspection, Butt must be grandfathered 24 under 8 U.S.C § 1255(i)(1). 25 204 petition for classification filed on or before April 30, Butt is the beneficiary of a section -8- 1 2001,5 and, we assume, for purposes of this discussion, that he 2 was physically present in the U.S. on December 21, 2000. 3 therefore satisfies the express statutory requirement set forth 4 in 8 U.S.C. § 1255(i)(1). 5 But the implementing regulations impose He additional 6 requirements, including that the petition or application be 7 approvable when filed : 8 9 10 11 12 13 14 15 8 16 245.10(i). 17 18 19 20 21 22 23 24 25 26 27 28 Grandfathered alien means an alien who is beneficiary ... of: (A) A petition for classification under section of the Act which was properly filed with Attorney General on or before April 30, 2001, which was approvable when filed C.F.R. § 245.10(a)(1)(i) (emphasis added); see the 204 the and also id. Approvable when filed is defined as follows: [A]s of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous ( frivolous being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. 8 C.F.R. § 245.10(a)(3) (emphasis added). The parties did not initially address whether Butt s 29 petition was approvable when filed. 30 above, we solicited their views as to whether we should remand 5 Accordingly, as noted Because Butt s application for a labor certification was not filed until December 2003, after the April 30, 2001, deadline imposed by 8 U.S.C. § 1255(i)(1)(B), he is not eligible for grandfathering on that basis. -9- 1 the case to the BIA to consider, in the first instance, whether 2 Butt has satisfied this requirement. 3 a U.S. Citizenship and Immigration Services ( USCIS ) Interoffice 4 Memorandum, dated March 9, 2005 ( USCIS Memorandum ), argued that 5 an application is to be deemed approvable when filed absent 6 evidence of fraud, and there is no such evidence in the record.6 7 The Government, on the other hand, argues that an application is 8 only approvable when filed if it is actually meritorious, and 9 because Butt defaulted on his application, and did not appeal 10 that determination, it is impossible to determine whether it was 11 approvable when filed. 7 In response, Butt, citing 6 Specifically, Butt, while arguing in passing that his application was meritorious and non-frivolous and that he submitted clear and convincing evidence showing that the marriage was bona fide, principally relies on the USCIS Memorandum, which states that [a]bsent evidence of fraud, when a qualifying application for labor certification . . . is properly filed and accepted by the United States Department of Labor in accordance with 20 CFR 656.21, USCIS will consider the requirements of 8 CFR 245.10 related to properly filed and approvable when filed to have been met for grandfathering purposes under section 245(i). Because there is no evidence of fraud, Butt argues, his application was approvable when filed. 7 The Government notes that because Butt defaulted and did not appeal, there was no determination concerning the merit of his petition. Furthermore, neither Butt nor his wife submitted an affidavit of marriage or other documentation suggesting the marriage was bona fide. The Government argues further that Butt s reliance on the USCIS Memorandum is misplaced for two reasons. First, the Memorandum states that it is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications for adjustment of status. . . . [and] is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law -10- 1 We decline to resolve this disagreement without the benefit 2 of the BIA s views. The meaning of approvable when filed is 3 ambiguous, especially as applied to the facts here presented.8 4 For example, an application may be approvable when filed if, as 5 the Government urges, it is meritorious and therefore should be 6 granted based on the facts existing at the time of filing. 7 the regulations, an application is approvable when filed if it 8 is meritorious in fact, which is perhaps most naturally read as 9 requiring that, based on the facts as they exist at the time of Under 10 filing, the application should be granted. See supra page 9, 11 quoting 8 C.F.R. § 245.10(a)(3); see also, e.g., Lasprilla v. 12 Ashcroft, 365 F.3d 98, 100-01 (1st Cir. 2004) (holding that 13 application was not approvable when filed because petitioner 14 had two opportunities -- in his motion to reopen and in his 15 motion to reconsider -- to present a sufficient showing that he 16 was within the exception and thus that the visa application was 17 approvable when filed, and failed to do so). 18 be the case that an application is approvable when filed if, as But it may also . . . by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Second, the section on which Butt relies concerns applications for labor certification, not petitions for classification. 8 The Government, in its supplemental submission, concedes that the record is unclear whether the spousal visa petition filed on Butt s behalf was approvable when filed. Gov t Supp. Ltr. Br., dated July 18, 2007, at 1. -11- 1 Butt urges, there is no evidence of fraud, if the application 2 states a prima facie case for eligibility, or something else 3 altogether. 4 sentence requiring that the application be meritorious in fact, 5 that 6 requirement 7 Government defines that term. 8 § 245.10(a)(3). it Indeed, the regulations require, in the very same be non-frivolous, if the which application must would be be a redundant meritorious as the See supra page 9, quoting 8 C.F.R. 9 Furthermore, in light of whatever definition of approvable 10 when filed the BIA adopts, was Butt s application, which was 11 denied when Butt failed to appear, approvable when filed ? That 12 is, when a petitioner defaults on his application, as Butt did, 13 and does not appeal that determination, how are we to determine 14 whether the application was approvable when filed ? 15 Given these ambiguities concerning whether Butt s petition 16 was approvable when filed -- a question that is potentially 17 dispositive of this petition -- we remand to give the BIA an 18 opportunity to express its views before we decide the petition. 19 20 21 22 23 24 B. Whether Butt may seek adjustment of status on the basis of an employment-based immigrant visa when he was grandfathered on the basis of a section 204 petition for classification? Third, assuming that Butt is grandfathered, we also remand 25 the case to 26 grandfathered the on BIA the to basis determine of -12- a whether section 204 Butt may petition be for 1 classification but then seek adjustment of status on the basis of 2 an employment-based immigrant visa. 3 Butt s application for a labor certification was filed after 4 April 30, 2001, so he must be grandfathered, if at all, on the 5 basis of the section 204 petition for classification, which was 6 filed before that date. 7 classification was eventually denied, so his status cannot be 8 adjusted on that basis. 9 status on the basis of an employment-based immigrant visa, if and But the section 204 petition for Instead, he plans to seek adjustment of 10 when it is granted. 11 the basis of a section 204 petition for classification but then 12 seek adjustment of status on the basis of an employment-based 13 immigrant visa. 14 As a result, he would be grandfathered on Does the INA so permit? We also sought the parties views 15 on this question in our supplemental briefing order. 16 supplemental brief, the Government appears to concede that, if 17 Butt 18 petition 19 adjustment 20 employment-based immigrant visa, is preserved under 8 C.F.R. § 21 245.10(a)(3).9 is grandfathered for of as the classification, status on beneficiary his some of eligibility other basis, a In its section to 204 apply for including an Butt, of course, agrees. 9 However, the Government argues that the earliest an employment-based immigrant visa would be available to Butt is October 2007 (unless he applied in June 2007, when there was a brief window during which Butt s priority date would have allowed him to apply), and he has no right to remain in the -13- 1 Although the parties appear to be in agreement on the 2 question of statutory interpretation -- i.e. that Butt may seek 3 adjustment 4 immigrant visa even though he was grandfathered on the basis of 5 a section 204 petition for classification -- we think, without 6 expressing any views whatsoever on the merits, that we would 7 benefit from the BIA s views on the issue. 8 provides that of status on the basis of an employment-based 8 C.F.R. § 245.10(i) 9 10 11 12 13 14 15 16 17 18 19 20 The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien s family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate. 8 C.F.R. § 245.10(i) (emphasis supplied); see also 8 C.F.R. § 21 245.10(a)(3) (stating that to preserve grandfathered status, an 22 alien whose properly filed visa petition was denied must be 23 otherwise eligible to file an application for adjustment of 24 status under section 245(i) of the [INA] ). 25 these provisions do not unambiguously compel the interpretation In our opinion, country in the interim. See Hadayat v. Gonzales, 458 F.3d 659, 662 (7th Cir. 2006) (observing that [w]hat is grandfathered ... is the basic eligibility for adjustment [of status]; in all other respects the individual remains a nonimmigrant -- that is, a person with no legal right to remain in the United States unless and until an immigrant visa becomes available ). We decline to address this question until we have the benefit of the BIA s views on the various questions set forth herein. -14- 1 favored by the parties. 2 statutory or regulatory provisions in issue that explicitly 3 requires that the immigrant visa on which basis the Attorney 4 General adjusts an alien s status be based on the application or 5 petition through which the alien was grandfathered. Furthermore, 6 the USCIS Memorandum, see supra pages 9-10 & nn.6-7, arguably 7 supports, at page 2, the interpretation propounded by both 8 parties, namely that Butt may seek adjustment of status on the 9 basis of an employment-based immigrant visa even though he was 10 grandfathered 11 classification. But the statutory and regulatory provisions also 12 do not foreclose other interpretations, viz. that the alien must 13 be grandfathered and have his status adjusted on the same basis 14 or that an alien may be grandfathered and have his status 15 adjusted 16 circumstances, see 8 C.F.R. § 245.10(a)(3) (providing that [a] 17 visa petition that was properly filed on or before April 30, 18 2001, and was approvable when filed, but was later withdrawn, 19 denied, or revoked due to circumstances that have arisen after 20 the 21 grandfathered status if the alien is otherwise eligible to file 22 an application for adjustment of status under section 245(i) of 23 the Act (emphasis added)). time on of on the To be sure, there is nothing in the different filing, basis of bases will a section only preserve -15- if he the 204 can alien petition show for changed beneficiary s 1 We therefore remand the case to the BIA to consider, in the 2 first instance, whether, if Butt is grandfathered on the basis of 3 the section 204 petition for classification, his status may be 4 adjusted on the basis of an employment-based immigrant visa. 5 6 7 III. CONCLUSION 8 Ambiguities such as these in a complex statutory scheme are 9 best addressed, in the first instance, by the expert agency 10 charged with administering it. See generally Chevron, U.S.A., 11 Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45 12 (1984). 13 BIA s decision, and remand the case to the BIA to consider the 14 various issues discussed above. 15 to rule upon the instant petition and decide the issues on appeal 16 following the disposition of the remand. 17 States Att y Gen., 449 F.3d 408, 415 (2d Cir. 2006) (per curiam) 18 (citing United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 19 1994). We therefore grant the petition for review, vacate the This panel retains jurisdiction -16- See Ci Pan v. United

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