Bolvito v. Mukasey

• Decision Date: 08 May 2008
• Docket Number: No. 06-60944.,06-60944.
• Parties: Miriam Yolanda BOLVITO; Edgar Leonel Bolvito; Bryan Leonel Bolvito; Jeffrey Alejandro Bolvito, Petitioners, v. Michael B. MUKASEY, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

527 F.3d 428

Miriam Yolanda BOLVITO; Edgar Leonel Bolvito; Bryan Leonel Bolvito; Jeffrey Alejandro Bolvito, Petitioners, v. Michael B. MUKASEY, U.S. Attorney General, Respondent.

No. 06-60944.

United States Court of Appeals, Fifth Circuit.

May 8, 2008.

Jesus Sauceda, Fort Worth, TX, for Miriam Yolanda Bolvito.

Don George Scroggin, Thomas Ward Hussey, Director, Linda Susan Wendtland, Norah Ascoli Schwarz, John Clifford Cunningham, Saul Greenstein, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Kristi Barrows, U.S. I.N.S., Dallas, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Petitioners Miriam Yolanda Bolvito ("Bolvito"), her husband Edgar Leonel Bolvito, and her two sons Bryan Leonel Bolvito and Jeffrey Alejandro Bolvito have petitioned for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of the immigration judge ("IJ") ordering them removed from the United States. For the reasons set forth below, we DENY the petition for review.

I. STATUTORY AND REGULATORY BACKGROUND

United States citizens and lawful permanent residents may file a visa petition on behalf of certain relatives to obtain lawful permanent residency in the United States. See Akhtar v. Burzynski, 384 F.3d 1193, 1196 (9th Cir.2004). The total number of family-sponsored immigrants is capped at 480,000 for each fiscal year. Id. (citing 8 U.S.C. § 1151(c)(1)(A)). Immediate relatives of a United States citizen, defined as the children¹ and spouse of a citizen, the parents of a citizen if the citizen is at least twenty-one years of age, and certain widows and widowers of citizens and their children, "may immigrate to the United States without regard to any quota system or waiting period." Id. (citing 8 U.S.C. § 1151(b)(2)(A)(i)).² For those family members who are not immediate relatives of citizens, there are four numerically-limited family-sponsored preference categories. See 8 U.S.C. § 1153(a). First preference is given to unmarried sons and daughters of U.S. citizens; second preference to spouses, children, and unmarried sons and daughters of permanent resident aliens; third preference to married sons and daughters of U.S. citizens; and fourth preference to brothers and sisters of U.S. citizens. Id.³

After a citizen or legal permanent resident has filed, on behalf of an alien relative, a visa petition (also known as a Form I-130 Petition for Alien Relative), the Government "will `approve' the petition after verifying that the claimed familial relationship is bona fide. An approved petition carries with it both a `preference category' and a `priority date.'" Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003).⁴ "Within the preference categories, immigrant visas are issued on a first-come-first-served basis." Kooritzky v. Reich, 17 F.3d 1509, 1511 (D.C.Cir.1994). An alien's place in the waiting line for an immigrant visa is determined by his or her "priority date," that is, the date on which the approved visa petition was filed. See id.; 8 C.F.R. § 204.1(c) ("The filing date of a petition shall be the date it is properly filed . . . and shall constitute the priority date."); 22 C.F.R. § 42.53(a) ("The priority date of a preference visa applicant under INA 203(a) or (b) shall be the filing date of the approved petition that accorded preference status."); Richard D. Steel, Steel on Immigration Law § 4:17 (2d ed.1992, updated through August 2007) ("In a relative preference case, the priority date is the date that the visa petition (Form I-130) was filed.").

Where, as here, the alien, on whose behalf a visa petition was filed by a relative, was previously admitted to the United States, but became subject to removal by virtue of his failure to maintain the nonimmigrant status by which the alien was admitted, see 8 U.S.C. § 1227(a)(1), the alien may apply for immigrant status pursuant to 8 U.S.C. § 1255(a), without having to first leave the country, through a process known as "adjustment of status." See Akhtar v. Gonzales, 450 F.3d 587, 590 (5th Cir.2006), reh'g granted on other grounds, 461 F.3d 584 (explaining that "[b]efore 1960, aliens in the United States without a valid visa had to go abroad to apply for permanent resident (immigrant) status" and that "[i]n 1960, Congress eliminated that burden by expanding eligibility for `adjustment of status'"); see also Succar v. Ashcroft, 394 F.3d 8, 13 (1st Cir.2005) ("Adjustment of status is `a technical term describing a process whereby certain aliens physically present in the United States may obtain permanent resident status . . . without leaving the United States.'") (quoting 3B Am.Jur.2d Aliens & Citizens § 2134). Under 8 U.S.C. § 1255(a), an "admitted alien," defined as an individual who has presented himself for inspection by an immigration officer and who has been allowed to enter the country,⁵ may have his status adjusted to that of a legal permanent resident if: "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." See also 8 C.F.R. § 245.1(a) (with some exceptions not pertinent here, "[a]ny alien who is physically present in the United States . . . may apply for adjustment of status to that of a lawful permanent resident of the United States if the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of filing of the application"); 8 C.F.R. § 245.2(a)(2) ("An immigrant visa must be immediately available in order for an alien to properly file an adjustment application under section 245 of the Act.").

Stated another way, in order to be eligible for an adjustment of status, the alien must show that an immigrant visa is immediately available to him at the time the application for adjustment is filed. See 8 U.S.C. § 1255(i)(2). Even if the alien's Form I-130 visa petition has been approved, an immigrant visa can only be obtained if a visa is available for the priority date assigned to the alien. See 8 C.F.R. § 245.1(g)(1) ("An alien is ineligible for the benefits of section 245 of the Act [to apply for an immigrant visa] unless an immigrant visa is immediately available to him or her at the time the application is filed."). Assuming that the alien falls into one of the four family-sponsored preference categories, "the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available." Id. For adjustment of status purposes, "an immigrant visa is considered available . . . [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current)." Id.

II. FACTUAL AND PROCEDURAL BACKGROUND

The petitioners are natives and citizens of Guatemala. On November 18, 1999, the petitioners were admitted to the United States with B-2 visas with permission to remain in this country until May 17, 2000.⁶ In May 2005, the Department of Homeland Security ("DHS") initiated removal proceedings against the petitioners. DHS asserted that the petitioners were removable under 8 U.S.C. § 1227(a)(1)(B) as aliens who remained in the United States beyond the time permitted.⁷ At the petitioners' master calendar hearing on August 22, 2005,⁸ they admitted the allegations contained in their notices to appear, conceded removability, and indicated that they intended to seek relief from removal through applications for adjustments of status pursuant to 8 U.S.C. § 1255(a), which, as discussed above, requires, inter alia, that immigrant visas are "immediately available to [them] at the time [their] application is filed." This petition for review turns on that issue — whether immigrant visas were immediately available to petitioners at the time that their application for adjustment was filed.

At the master calendar hearing, the petitioners presented the following evidence. On November 9, 1981, Bolvito's stepfather, Francisco Rodriguez, who was a lawful permanent resident, filed an I-130 visa petition on behalf of Bolvito's mother, Guillermina Rodriguez, whom he had married in New Jersey on August 7, 1981. Bolvito was listed as a child of Guillermina Rodriguez on the 1981 I-130 petition. On December 11, 1981, Guillermina Rodriguez's petition was approved, which, as discussed earlier, meant that the Government determined the claimed familial relationship to be bona fide and consequently accorded Guillermina Rodriguez a preference category (second) and priority date (November 9, 1981). On May 27, 1982, Guillermina Rodriguez successfully adjusted her status and became a lawful permanent resident. However, between the date that Guillermina Rodriguez's I-130 petition was approved and the date that Guillermina Rodriguez adjusted her status, Bolvito turned twenty-one years of age on January 16, 1982.⁹ This is significant because pursuant to 8 C.F.R. § 204.2(a)(4):

A child accompanying or following to join a principal alien under [8 U.S.C. § 1153(a)(2)] may be included in the principal alien's second preference visa petition. The child will be accorded second preference classification and the same priority date as the principal alien. However, if the child reaches the age of twenty-one prior to the issuance of a visa to the principal alien parent, a separate petition will be required. In such a case, the original priority date will be retained if the subsequent petition is filed by the same petitioner. Such retention of priority date will be accorded only to a son or daughter previously eligible as a derivative beneficiary under a second preference spousal...