Gazeli v. Session

• Decision Date: 18 May 2017
• Docket Number: No. 16-3270,16-3270
• Citation: 856 F.3d 1101
• Parties: Sofokli GAZELI; Mirela Gazeli aka Mirela Goxhaj, Petitioners, v. Jefferson B. SESSION, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

856 F.3d 1101

Sofokli GAZELI; Mirela Gazeli aka Mirela Goxhaj, Petitioners,

v.Jefferson B. SESSION, III, Attorney General, Respondent.

No. 16-3270

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 18, 2017

ON BRIEF: Marshal E. Hyman, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC., Troy, Michigan, for Petitioners. Carmel A. Morgan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: DAUGHTREY, ROGERS, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

Facing removal from the United States, Sofokli and Mirela Gazeli asked an immigration judge (IJ) to approve two sets of applications to adjust their immigration status. The IJ concluded that the Gazelis were ineligible for adjustment under their first set of applications and that it lacked jurisdiction to consider their second. The Board of Immigration Appeals (BIA) affirmed. In their petition for review, the Gazelis raise issues of first impression regarding the interpretation and validity of two immigration regulations. Because the BIA properly applied federal law, and because the challenged regulations are reasonable interpretations of the Immigration and Nationality Act (INA), we DENY their petition for review.

I. Background

"Under the Immigration and Nationality Act, an alien can become a permanent resident by obtaining an employment visa. To do so, the alien must complete a three-step process." Patel v. U.S. Citizenship & Immigration Servs. , 732 F.3d 633, 634 (6th Cir. 2013) (citations omitted). First, the alien's potential employer must apply for and receive labor certification from the Department of Labor (DOL). Id. (citing 8 U.S.C. § 1154(b)(3)(C) ; 20 C.F.R. § 656.17(a)(1) ). Second, that employer must file an I-140 petition for a work visa with the Citizenship and Immigration Services (USCIS). Id. (citing 8 U.S.C. § 1154(a)(1)(F) ; 8 C.F.R. § 204.5(a) ). Third, if the USCIS approves the petition, the alien must then apply to adjust his immigration status. Id . (citing 8 U.S.C. § 1255 ; 8 C.F.R. § 245.2(a)(3)(ii) ).

Petitioners are natives and citizens of Albania. In July 2001, Sofokli came to the United States under a B-2 visitor visa, with his wife Mirela following a few months later. Although Sofokli's visa permitted him to stay in the United States only until January 1, 2002, Petitioners remained in the United States without authorization after that date while Sofokli sought an employment visa.

On May 6, 2002, four months after Sofokli's visa expired, his employer applied for labor certification for Sofokli, which the DOL granted on April 15, 2003. His employer then filed an I-140 petition for a work visa for Sofokli on October 24, 2003.

Petitioners applied to adjust their status from visitor to permanent resident the same day,¹ with Mirela filing as her husband's derivative beneficiary. Thereafter, the USCIS granted Petitioners advance parole, which permits an alien who is otherwise inadmissible to leave the United States and reenter at a later date. See Rais v. Holder , 768 F.3d 453, 456 n.2 (6th Cir. 2014) (citing In re Arrabally , 25 I. & N. Dec. 771, 777 (B.I.A. 2012) ). Petitioners left the United States and returned a few months later in April 2004 to await adjudication of their applications.

In February 2005, the USCIS approved the work-visa petition filed by Sofokli's employer. Unfortunately for Petitioners, the USCIS denied their adjustment applications a few weeks later, relying on an INA provision that bars aliens from adjusting their status if they have accrued more than 180 days in the United States without "lawful status." See 8 U.S.C. § 1255(k)(2). Following the denial of their applications, Petitioners departed again and were paroled into the United States in 2005. They filed a second set of adjustment applications upon their return, which USCIS denied in September 2006.

A few months later, the Department of Homeland Security served Petitioners with a notice to appear before an IJ, alleging that Petitioners remained in the United States without authorization and were subject to removal. Appearing before the judge, Petitioners denied removability and renewed both their first and second adjustment applications.

The IJ denied Petitioners' request to adjust their status and ordered their removal to Albania. The judge found that Sofokli had accrued more than 180 days out of "lawful status" at the time of his first application. As the judge saw it, Sofokli's lawful status expired on January 1, 2002, yet he did not apply to adjust his status until October 24, 2003. The judge rejected Sofokli's argument that he remained in lawful status by virtue of his employer's pending labor-certification request and work-visa petition. The judge held that she lacked jurisdiction to consider Sofokli's second set of applications. The BIA, acting through a single judge, issued a separate opinion affirming in all respects. Petitioners timely filed a petition for review.

II. Standard of Review

"Where, as here, the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily affirming the IJ's decision, we review the BIA's decision as the final agency determination." Al-Ghorbani v. Holder , 585 F.3d 980, 991 (6th Cir. 2009) (citing Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007) ). We review questions of law de novo, but afford substantial deference to the BIA's interpretation of the INA and accompanying regulations. Shewchun v. Holder , 658 F.3d 557, 561 (6th Cir. 2011) (citing Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) ).

III. Discussion

In their petition for review, the Gazelis assert their eligibility for adjustment under both their first and second sets of adjustment applications. We address each in turn.

A. Petitioners' First Set of Adjustment Applications

Section 245 of the INA, 8 U.S.C. § 1255, provides the framework governing Petitioners' eligibility to adjust their immigration status. Although the beneficiary of an approved work-visa is generally eligible, § 1255(c) disqualifies aliens who are "in unlawful immigration status" on the date they file their applications or who "failed (other than through no fault of [their] own or for technical reasons) to maintain continuously a lawful status since entry into the United States." 8 U.S.C. § 1255(a), (c)(2). This eligibility bar, however, comes with an exception relevant here. Section 1255(k) permits the beneficiary of an approved work-visa petition to adjust his status if he has not accrued more than 180 days out of "lawful status" prior to applying for adjustment. 8 U.S.C. § 1255(k). In effect, subsection (k) acts as a 180-day grace period to subsection (c)'s requirement that an applicant be in lawful status at the time of filing.

Here, Sofokli's visitor visa expired on January 1, 2002. Petitioners filed their first adjustment applications with the USCIS on October 24, 2003, outside of § 1255(k)'s 180-day window. The BIA therefore concluded that they were ineligible for adjustment.

Petitioners' primary argument is that the employer's labor-certification application filed on May 6, 2002, tolled the running of time in unlawful status during its pendency, so that he was in unlawful status for only 125 days.

Petitioners' argument turns on the proper understanding of "lawful status." The operative definition, provided in regulations promulgated by the Attorney General, consists of six categories of lawful status: lawful permanent residency, non-expired or extended non-immigrant status, refugee status, asylee status, valid parole status, or eligibility under the Immigration Nursing Relief Act of 1989. 8 C.F.R. § 1245.1(d)(1). The Attorney General's regulation does not include a pending labor-certification application, an omission that Petitioners argue renders the regulation an "unreasonably narrow construction" of lawful immigration status not due Chevron deference.

Because the INA does not define "lawful immigration status," Congress has not "directly spoken to the question at issue," Chevron, U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 853, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) —here, whether a pending request for labor certification confers lawful status. Furthermore, because Congress authorized the Attorney General to prescribe regulations to govern the grant of status adjustments, 8 U.S.C. § 1255(a), the definition in the regulation controls unless "arbitrary, capricious, or manifestly contrary to the statute." Chevron , 467 U.S. at 844, 104 S.Ct. 2778.

The Attorney General's definition—with its six categories of "lawful" aliens—fits comfortably within the statutory framework. An employer's application for labor certification is only the first step in seeking adjustment of status via an employment visa. See Patel , 732 F.3d at 634. Neither an approved labor certification nor an approved work-visa petition confers permanent-resident status; the beneficiary must then apply for adjustment with the Attorney General, who retains discretion to deny the application even if the alien meets the INA's eligibility requirements. See 8 U.S.C. § 1255(a) ; Ferrans v. Holder , 612 F.3d 528, 531 (6th Cir. 2010). This framework suggests that only the Attorney General's imprimatur confers lawful immigration status, not the alien's completion of the preliminary steps necessary to apply.

Petitioners counter by pointing out that seeking adjustment of status through an approved work visa often takes more than 180 days to complete. Yet once an employer begins the process, the holder of a B-2 visitor visa may have trouble demonstrating the nonimmigrant intent necessary to extend the visa. See 8 U.S.C. §§ 1184(b), 1101(a)(15)(B) (requiring visitor-visa applicants to demonstrate that they "have[ ] a residence in a foreign country which [they] ha[ve] no intention of abandoning" and are visiting "temporarily for pleasure"). As Petitioners see it, § 1255(k)'s short eligibility window, the difficulty of extending visitor status while the DOL...