Hsiao v. Hazuda, No. 15-55676 (9th Cir. 2017)
Annotate this CasePetitioner sought to adjust his immigration status to that of a lawful permanent resident, but in order to do so, he needed to prove that at least one of the two visa petitions he filed prior to 2001 was approvable when filed, even though both were ultimately denied. USCIS rejected plaintiff's application to adjust his status because the petitions were denied on their merits and because there was no allegation that the petitions were denied on the basis of circumstances that changed between the time when they were filed and the time when they were adjudicated. The panel affirmed the district court's grant of summary judgment to USCIS, holding that the district court correctly concluded that USCIS was permitted to treat prior merits-based denials of plaintiff's visa petitions as dispositive proof that the petitions were not approvable when filed.
Court Description: Immigration. The panel affirmed the district court’s decision granting summary judgment in favor of the United States Citizenship and Immigration Service in an action brought by Chung Hou Hsiao challenging the denial of his application to adjust his status to that of a lawful permanent resident. The panel addressed adjustment of status under 8 U.S.C. § 1255(i), a grandfathering provision that allows an alien who would otherwise be disqualified from securing adjustment of status due to unauthorized employment or failing to maintain lawful status to nevertheless obtain adjustment of status if the alien is the beneficiary of a visa petition filed on or before April 30, 2001. In order to qualify, the visa petition must have been “approvable when filed,” meaning, in part, that the visa petition was “meritorious in fact.” HSIAO V. HAZUDA 3 Hsiao claimed that he was the beneficiary of such visa petitions – even though the petitions were denied – because they were “approvable when filed.” Hsiao’s position was that, to determine whether a previously denied visa petition was “meritorious in fact,” USCIS must reevaluate the petition anew, taking account of any additional evidence that an alien may choose to submit. The panel held that, in determining whether an alien’s prior visa petition was “meritorious in fact,” it is generally permissible to treat a denial of the petition as dispositive if it was made on the merits and the denial was not the result of circumstances that changed after the petition was filed. The panel acknowledged that there may be exceptions to this general rule, but that such exceptions did not apply in Hsiao’s case, and there was no allegation that his circumstances changed between when his visa petitions were filed and when they were denied. The panel further held that, although USCIS may have had the option to reconsider the merits of Hsiao’s prior petitions in light of new evidence he submitted, it was not required to do so.
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