Landin-Molina v. Holder
| Decision Date | 01 September 2009 |
| Docket Number | No. 05-75825.,No. 05-73677.,05-73677.,05-75825. |
| Citation | 580 F.3d 913 |
| Parties | Victor LANDIN-MOLINA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. Petra Estrada-Mendoza, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nicomedes E. Suriel, Phoenix, AZ, for petitioner Landin-Molina.
Peter D. Keisler, Assistant Attorney General, Mark C. Walters, Assistant Director, Joanne E. Johnson, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.
Christopher J. Todd, Mill Valley, CA; Stephen V. Scribner, Santa Rosa, CA, for petitioner Estrada-Mendoza.
Peter D. Keisler, Assistant Attorney General, Emily Anne Radford, Assistant Director, Gjon Juncaj, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.
On Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A079-652-076, A076-346-685.
Before STEPHEN S. TROTT, M. MARGARET McKEOWN and SANDRA S. IKUTA, Circuit Judges.
We consider here an alien's eligibility to adjust to lawful permanent resident status via the "grandfathering" regulations implementing § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i) ("§ 1255(i)"). Adjustment of status is generally available only to aliens who were inspected and admitted or paroled into the United States, see INA § 245(a), 8 U.S.C. § 1255(a); however, under § 1255(i), certain aliens who entered this country without inspection may apply for adjustment of status. Section 1255(i) expired on April 30, 2001, and, at present, its benefits are available only to those aliens who qualify as having been "grandfathered" into the provision. See 8 C.F.R. § 245.10(b).
This appeal involves two natives and citizens of Mexico, Victor Landin-Molina ("Landin") and Petra Estrada-Mendoza ("Estrada"), who entered the United States unlawfully. Although these individuals are unrelated, we consolidated their petitions for review with respect to the grandfathering issue.
Landin argues that he is grandfathered by virtue of his marriage to Viviana Ojeda, who adjusted her status as a grandfathered alien. Unfortunately for Landin, the grandfathering provision does not assist his case. Because the marriage occurred after Ojeda adjusted to lawful permanent resident status, she does not impart grandfathered status to him. Estrada argues that she is grandfathered based upon her registration for the Replenishment Agricultural Worker ("RAW") program. She is not grandfathered, however, because being a registrant for the RAW program does not satisfy the requirement of having filed an application for labor certification. Consequently, we deny the petitions.1
Prior to 1952, immigrant status was predicated upon the issuance of an immigrant visa, which could be obtained only at U.S. consular offices abroad. See Choe v. INS, 11 F.3d 925, 928 (9th Cir.1993). Under that rule, an alien already inside this country could acquire immigrant status only by temporarily leaving the United States to secure an appropriate visa. See id. In 1952, Congress enacted INA § 245, 8 U.S.C. § 1255, which authorized a process—"adjustment of status"—whereby certain aliens physically present in the United States could seek lawful permanent resident status without having to depart this country. Immigration and Nationality Act, Pub.L. No. 82-414, tit. II, ch. 5, § 245, 66 Stat. 163, 217 (1952).
As initially established, this process benefitted only those aliens who were in the United States lawfully. See id.; Succar v. Ashcroft, 394 F.3d 8, 13-14 (1st Cir.2005). Today, adjustment of status under INA § 245(a), the principal adjustment provision, is available only to aliens who were inspected and admitted or paroled into the United States, and to certain aliens with approved classification petitions brought under the Violence Against Women Act ("VAWA"). See 8 U.S.C. § 1255(a).2
This case involves INA § 245(i), 8 U.S.C. § 1255(i), which authorizes adjustment of status for certain aliens unlawfully in the United States. Congress enacted this "alternative" adjustment provision in 1994. See Pub.L. 103-317, tit. V, § 506(b), 108 Stat. 1724, 1765-66 (1994); see also Gonzales v. DHS, 508 F.3d 1227, 1230 (9th Cir.2007).3 As amended by the Legal Immigration Family Equity Act of 2000, Pub.L. 106-554, tit. XV, § 1502(a), 114 Stat. 2763, 2763A-324 (2000), § 1255(i) permits aliens who entered the United States without inspection to apply for adjustment of status, provided the alien is the beneficiary of either a petition for classification under 8 U.S.C. § 1154 or an application for a labor certification under 8 U.S.C. § 1182(a)(5)(A). The petition or application must have been filed on or before April 30, 2001. See 8 U.S.C. § 1255(i)(1)(A)-(B). Any qualifying alien's spouse or children, if eligible to receive a visa under 8 U.S.C. § 1153(d), may also seek a status adjustment under § 1255(i); the qualifying alien is called the "principal" alien. Id. § 1255(i)(1)(B).
Upon receipt of the adjustment application, the Attorney General may adjust the status of the alien to that of a lawful permanent resident if "(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to the alien at the time the application is filed." Id. § 1255(i)(2).
Following the 2000 legislative amendment, adjustment of status under § 1255(i) is presently unavailable except for those aliens who qualify as being grandfathered into the section. See 8 C.F.R. § 245.10(b). Under the implementing regulations, a "grandfathered alien" for the purposes of § 1255(i) is:
an alien who is the beneficiary (including a spouse or child of the alien beneficiary if eligible to receive a visa under [8 U.S.C. § 1153(d)]) of:
(A) A petition for classification under [8 U.S.C. § 1154] which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed; or
(B) An application for a labor certification under [8 U.S.C. § 1182(a)(5)(A)] that was properly filed pursuant to the regulations of the Secretary of Labor on or before April 30, 2001, and which was approvable when filed.
8 C.F.R. § 245.10(a)(1)(i). The term "approvable when filed" means that, "as of the date of the filing of the qualifying immigrant visa petition ... or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous (`frivolous' being defined as patently without substance)." Id. § 245.10(a)(3). "This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed." Id.
Having entered the United States unlawfully, Landin and Estrada may pursue adjustment of status only under § 1255(i), and they may do so only if they are grandfathered into the provision. We conclude that neither qualifies as a grandfathered alien.
Landin entered the United States without inspection in January 1999, after which the Immigration and Nationality Service ("INS")4 initiated removal proceedings against him. On May 17, 2004, an immigration judge ("IJ") determined that Landin was removable but granted him the privilege of voluntary departure.
The very next day, Landin married Viviana Ojeda—a lawful permanent resident of the United States. Ojeda, who had grandfathered into § 1255(i), adjusted to lawful permanent resident status in April 2004, just weeks before marrying Landin.
Landin then filed with the immigration court a timely motion to reopen his immigration proceedings and to stay his voluntary departure. Landin argued that, by virtue of his recent marriage to Ojeda, he was grandfathered into § 1255(i).5 The IJ denied the motion, concluding that Landin was not grandfathered because his marriage to Ojeda occurred after her status was adjusted. The Board of Immigration Appeals ("BIA") affirmed without opinion under 8 C.F.R. § 1003.1(e)(4).6
On appeal, Landin again advances the argument that he is entitled to grandfathered status under § 1255(i) based upon his wife's having adjusted her status via the grandfathering regulations. In interpreting § 1255(i), we begin with the plain language of the statute. See Altamirano v. Gonzales, 427 F.3d 586, 592 (9th Cir. 2005). Section 1255(i) provides that the spouse of a qualifying principal alien is also eligible to seek the benefits of that provision, if the derivative spouse is eligible for a visa under 8 U.S.C. § 1153(d). See 8 U.S.C. § 1255(i)(1)(B). In turn, § 1153(d) requires that the derivative spouse be "accompanying or following to join" the principal spouse. 8 U.S.C. § 1153(d).7 Thus, under the plain language of § 1255(i), a derivative spouse is only eligible for an adjustment of status under that provision if he or she is "accompanying or following to join" the principal alien. As we recognized in Santiago v. INS, with the phrase "accompanying or following to join," Congress intended to preserve family unity by permitting an alien who qualifies for immigrant status "to bring his family with him or to send for them later when he ha[s] the ability to do so." 526 F.2d 488, 490-91 (9th Cir.1975) (en banc) ( 8 U.S.C. § 1153(a)(9)); see also Matter of Kahn, 14 I & N Dec. 122, 123-24 (BIA 1972), aff'd sub nom. Santiago, 526 F.2d 488.
Likewise, under the grandfathering regulations, a principal alien who is grandfathered into § 1255(i) may impart grandfathered status to a spouse, again provided that the spouse is eligible to receive a visa under § 1153(d). See 8 C.F.R. § 245.10(a)(1)(i). It follows, then, that if a derivative spouse is not ...
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