Gazeli v. Sessions, No. 16-3270 (6th Cir. 2017)Annotate this Case
Sixth Circuit upholds BIA interpretation of "previously filed" application for adjustment of status.
In 2001, Sofokli, a citizen of Albania, entered the U.S. under a visitor visa. Four months after it expired, his employer sought labor certification, which was granted 11 months later. His employer then sought a work visa; Sofoklis applied to adjust his status to permanent resident. USCIS granted advance parole, which permits an alien who is otherwise inadmissible to leave the U.S. and reenter. USCIS approved the work-visa petition but denied the adjustment application, citing 8 U.S.C. 1255(k)(2), which bars aliens from adjusting their status if they have accrued more than 180 days in the U.S. without “lawful status.” Sofokli departed again and was paroled into the U.S. His second adjustment application was denied. An IJ ordered removal, rejecting Sofokli’s argument that he remained in lawful status because of his employer’s pending petitions. The BIA and Sixth Circuit affirmed, upholding 8 C.F.R. 1245.2(a)(1)(ii), which provides that, for an application to be subject to the jurisdiction of the immigration courts, the arriving alien must have filed the application while in the U.S. and must have “’departed from and returned … pursuant to ... advance parole to pursue the previously filed application for adjustment of status.” The court upheld the BIA’s conclusion that Sofokli’s second application was not “previously filed,” having been filed after returning from advance parole.