Chung Hou Hsiao v. Hazuda

• Citation: 869 F.3d 1034
• Decision Date: 01 September 2017
• Docket Number: No. 15-55676,15-55676
• Parties: CHUNG HOU HSIAO, Plaintiff-Appellant, v. Mark J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; James McCament, Acting Director, U.S. Citizenship and Immigration Services; Jefferson B. Sessions III, Attorney General of the United States; Elaine Duke, Acting Secretary, Department of Homeland Security, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

869 F.3d 1034

CHUNG HOU HSIAO, Plaintiff-Appellant,

v.Mark J. HAZUDA, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; James McCament, Acting Director, U.S. Citizenship and Immigration Services; Jefferson B. Sessions III, Attorney General of the United States; Elaine Duke, Acting Secretary, Department of Homeland Security, Defendants-Appellees.

No. 15-55676

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2017 Pasadena, California

Filed September 1, 2017

Scott Eric Bratton (argued) and Margaret W. Wong, Margaret Wong & Associates, Cleveland, Ohio, for Plaintiff-Appellant.

Glenn Matthew Girdharry (argued), Assistant Director; Elianis N. Perez, Senior Litigation Counsel; William C. Peachey, Director; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Richard R. Clifton and Michelle T. Friedland, Circuit Judges, and Thomas O. Rice,^* Chief District Judge.

OPINION

CLIFTON, Circuit Judge:

The Immigration and Nationality Act permits an alien who is already in the United States and meets certain criteria to apply to adjust his immigration status to that of an alien lawfully admitted for permanent residence without having to return to his country of origin and submit an application at the United States consulate in that country. 8 U.S.C. § 1255(a). An alien is disqualified from using this process, however, if he has engaged in unauthorized employment or has failed to continuously maintain lawful immigration status since entering the United States. 8 U.S.C. § 1255(c)(2). Such a disqualification will be forgiven if the alien was the beneficiary of a qualifying visa petition (or labor certification application) that was filed on or before April 30, 2001, and if the alien meets certain other requirements. 8 U.S.C. § 1255(i). In order to qualify, the visa petition must have been "approvable when filed." 8 C.F.R. § 245.10(a)(1)(i)(A).

What does it mean for a visa petition to have been "approvable when filed"? If the petition was actually approved, then it qualifies, of course, but what if it was denied? Is the denial dispositive, or should an alien be permitted to relitigate the merits of a previously denied petition when he makes a subsequent application to adjust his immigration status?

In this case, an alien 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. United States Citizenship and Immigration Services ("USCIS") rejected the alien'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 alien challenged the denial of his application to adjust status in district court, where he argued that the mere fact that the prior visa petitions were denied was insufficient to demonstrate that they were not approvable when filed. He contended that USCIS should have reevaluated the merits of the visa petitions in light of new evidence he submitted.

The district court granted summary judgment to USCIS and held that USCIS was permitted to reevaluate the merits of a previously denied visa petition to determine whether it was approvable when filed but that it was only obligated to do so if the denial was due to circumstances that changed between when the petition was filed and when it was adjudicated. We agree with the district court, and we affirm.

I. Background

Chung Hou Hsiao came to the United States from Taiwan in 1993 on a student visa. He earned a master's degree in electrical engineering from Fairleigh Dickinson University in New Jersey in 1995.

In 1998 Hsiao filed an I-140 petition seeking a visa pursuant to 8 U.S.C. §§ 1153(b)(2)(A) and 1154(a)(1)(F), which permit an alien with an advanced degree or "exceptional ability" to obtain a visa. The statute authorizes the Attorney General to waive an otherwise-applicable requirement that the alien's services be sought by a specific employer if the Attorney General determines that such a waiver is "in the national interest." 8 U.S.C. § 1153(b)(2)(B)(i). Hsiao stated that his advanced degree and exceptional ability were in the field of electrical and computational engineering. After considering the documents Hsiao provided in response to a request for additional evidence, the Immigration and Naturalization Service¹ denied the petition, explaining that, although the record established that Hsiao was "a competent researcher," "[t]he record [did] not contain evidence to establish that the waiver of the [requirement for a] job offer [by a specific employer] would be in the national interest. The record establishe[d] that the qualifications and the job would be easily articulated on a labor certification and job offer."

Hsiao filed a second I-140 petition in 2000 seeking a visa pursuant to 8 U.S.C. §§ 1153(b)(1)(A) and 1154(a)(1)(E), which permit an alien of "extraordinary ability" to obtain a visa without the requirement that the alien's services be sought by an employer. Hsiao claimed that he possessed extraordinary ability in the field of computer technology. After the INS requested additional evidence and Hsiao provided supplemental materials, the INS concluded that "the evidence submitted [did] not establish that [Hsiao was] one of that small percentage who [had] risen to the very top of the field" and that he thus did not qualify "as an alien of extraordinary ability." The INS therefore denied the petition.

Hsiao filed a third I-140 petition in 2012 pursuant to 8 U.S.C. § 1153(b)(2)(A), the "exceptional ability" provision. He claimed exceptional ability in solar technology, a different field from what he had claimed in his prior petitions. He again sought a national interest waiver to the job offer requirement, and USCIS approved the petition.

Hsiao then filed an I-485 application to adjust his status to that of a lawful permanent resident. He also filed a supplement stating that he was in unlawful immigration status because he had remained in the United States past the end of the period of his lawful admission and had failed to maintain lawful status. Ordinarily, that circumstance (or the circumstance of having undertaken employment without authorization, which also appears to apply to Hsiao) would, pursuant to 8 U.S.C. § 1255(c)(2), disqualify an alien from obtaining adjustment of status.

Hsiao sought relief from that disqualification on the basis of 8 U.S.C. § 1255(i), the "grandfathering" provision. The grandfathering provision allows an alien who would otherwise be disqualified from securing adjustment of status due to 8 U.S.C. § 1255(c) to nevertheless obtain adjustment of status provided that he meets certain requirements. In addition to other requirements that the parties seem to agree Hsiao satisfied, the grandfathering provision requires that the alien be the beneficiary of "a petition for classification under [ 8 U.S.C. § 1154 ] that was filed with the Attorney General on or before April 30, 2001."² 8 U.S.C. § 1255(i)(1)(B)(i). According to 8 C.F.R. § 245.10(a)(1)(i)(A), a petition only counts under the grandfathering provision if it was "approvable when filed."

Hsiao claimed he was the beneficiary of two such petitions, namely the 1998 and 2000 petitions described above. He argued that, even though those petitions were denied, they were nevertheless approvable when filed. In support of his position, Hsiao cited some evidence that was in the record at the time the petitions were originally adjudicated, and he also provided new evidence. USCIS denied Hsiao's application to adjust status, explaining that the petitions "were denied for cause and were not approved" and concluding that the "petitions were not approvable when filed." His administrative appeal was denied on the same grounds.

Hsiao then filed a complaint in the Central District of California, where he then resided, invoking the Administrative Procedure Act to challenge the denial of his application to adjust his status. The district court concluded that USCIS did not violate the APA in denying Hsiao's application to adjust his status, denied summary judgment to Hsiao, and granted summary judgment to USCIS. Hsiao timely appealed.

II. Discussion

We review a grant of summary judgment de novo. Ramirez v. Brown , 852 F.3d 954, 958 (9th Cir. 2017). When considering a challenge to a final agency decision brought pursuant to the APA, "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2).

Hsiao does not challenge the original denial of his 1998 and 2000 I-140 petitions. Indeed, he could not do so as the time period for challenging those denials has long since run. See 28 U.S.C. § 2401(a). Nor does he contend that the relevant regulations are improper interpretations of the statute. Rather, the dispute in this appeal is whether USCIS correctly interpreted its own regulations in determining that Hsiao's 1998 and 2000 I-140 petitions were not "approvable when filed."

The term "approvable when filed" is defined in the applicable regulation:

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition ..., the qualifying petition ... 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. A visa petition that was properly filed on or before April 30, 2001, and was

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