Lee v. U.S. Citizenship and Immigration Services

• Decision Date: 25 January 2010
• Docket Number: No. 08-1659.,08-1659.
• Citation: 592 F.3d 612
• Parties: Sang Y. LEE, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

592 F.3d 612

Sang Y. LEE, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant-Appellee.

No. 08-1659.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2009.

Decided: January 25, 2010.

ARGUED: Ivan Yacub, Falls Church, Virginia, for Appellant. Jason Daniel Medinger, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Judge AGEE joined.

OPINION

TRAXLER, Chief Judge:

Sang Lee, a Korean national, entered the United States in July 2000 as a visitor with permission to remain until January 21, 2001. Lee overstayed his visa and remains in the United States despite his failure to maintain lawful nonimmigrant status.

In May 2003, Lee applied under the Immigration and Nationality Act ("INA") to adjust his status and become a permanent resident based on his employment with the Korean Broadcasting Network ("KBN"). See 8 U.S.C. § 1255(a). Ordinarily, the failure to maintain continuous lawful status by overstaying a visa renders a prospective immigrant ineligible for an adjustment of status. See 8 U.S.C. § 1255(c)(2) (excluding aliens who were "in unlawful immigration status on the date of filing the application for adjustment of status or who . . . failed . . . to maintain continuously a lawful status since entry into the United States"). Nevertheless, Lee claimed that he could still apply for adjusted status by virtue of 8 U.S.C. § 1255(i), a provision that permitted otherwise ineligible aliens to apply for an adjustment of status. This provision expired on April 30, 2001, except for "grandfathered aliens." See 8 C.F.R § 245.10(b); Ogundipe v. Mukasey, 541 F.3d 257, 259 (4th Cir.2008).

The District Director for the United States Citizenship & Immigration Services ("USCIS" or "the Service") denied Lee's application, concluding that he did not qualify as a "grandfathered" alien under 8 C.F.R. § 245.10(j) and thus was precluded from filing for an adjustment of status. Lee did not appeal the District Director's denial to the Board of Immigration Appeals ("BIA") because, despite Lee's unlawful immigration status, the Service has yet to place him in removal proceedings. Instead, after the Director denied his application to adjust status, Lee filed this action under the Administrative Procedure Act ("APA") challenging the validity of 8 C.F.R. § 245.10(j). The district court determined that it lacked jurisdiction and dismissed Lee's action. For the reasons discussed below, we affirm.

I.

A. Grandfathering under Section 1255(i)

To better understand both the procedural history of Lee's case and the arguments he raises here, it is helpful to review briefly the adjustment-of-status process as it relates to § 1255(i) and its grandfathering clause.

Prior to 1952, obtaining immigrant status was possible only through the issuance of an immigrant visa by a United States consular office abroad. See Choe v. INS, 11 F.3d 925, 928 (9th Cir.1993); Landin-Molina v. Holder, 580 F.3d 913, 916 (9th Cir.2009) (explaining that under this practice "an alien already inside this country could acquire immigrant status only by temporarily leaving the United States to secure an appropriate visa"). In 1952, Congress established an adjustment-of-status process, codified in 8 U.S.C. § 1255(a), affording aliens who entered as nonimmigrants a means of becoming permanent residents without having to depart the United States and apply for an immigrant visa from a consular office abroad. See 8 U.S.C. § 1255(a); INS v. Bagamasbad, 429 U.S. 24, 25 n. *, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (per curiam) (explaining that the adjustment-of-status provision was enacted so that "aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent-resident status").

Generally speaking, Congress has limited the use of the adjustment-of-status mechanism to lawfully present aliens in order "to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and to encourage them to follow the orderly consular process for the issuance of immigrant visas." In re Briones, 24 I. & N. Dec. 355, 359 (BIA 2007); see Landin-Molina, 580 F.3d at 916 (observing that "this process benefitted only those aliens who were in the United States lawfully"). For our purposes, these lawful-presence restrictions are codified in § 1255(c).

In 1994, Congress enacted § 1255(i), temporarily lifting § 1255(c)'s restrictions on certain aliens seeking adjustment of status. Under the version originally enacted by Congress,

an alien who was eligible to receive an immediately available immigrant visa, but who would be precluded from adjustment of status under [§ 1255(a)] for having entered without inspection or for one of the reasons enumerated in [§ 1255(c)], was permitted to adjust status upon payment of a surcharge along with an application for adjustment under [§ 1255(i)].

In re Wang, 23 I. & N. Dec. 924, 927 (BIA 2006). Because this measure was intended to be temporary, it contained a sun set provision requiring that a § 1255(i) application for adjustment of status be filed between October 1, 1994, and October 1, 1997. See 1995 Appropriations Act, Pub.L. No. 103-317, § 506(b), (c), 108 Stat. 1724, 1765-66 (effective Oct. 1, 1994); In re Briones, 24 I. & N. Dec. at 360.

After the expiration of § 1255(i) under the 1994 Act, Congress added a grandfather clause to allow the continued use of § 1255(i) by aliens who were beneficiaries of either a visa petition or a labor certification filed on or before January 14, 1998. See In re Wang, 23 I. & N. Dec. at 927 (explaining that the grandfather provision "shift[ed] the focus of the filing requirements from the date the application for adjustment of status was filed to the date on which the underlying visa petition or application for a labor certification was filed"); 1998 Appropriations Act, Pub.L. No. 105-119, § 111(b), 111 Stat. 2440, 2458 (1997).

In 2000, Congress extended the expiration date for § 1255(i) adjustment applications to April 30, 2001, see 2001 Appropriations Act, Pub.L. 106-554, § 1502(a)(1)(B), 114 Stat. 2763,¹ the cutoff date incorporated into the current version of § 1255(i):

(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States—

(A) who—

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in subsection (c) of this section;

(B) who is the beneficiary . . . of—

(i) [an immigrant visa petition] that was filed with the Attorney General on or before April 30, 2001; or

(ii) an application for a labor certification . . . that was filed pursuant to the regulations of the Secretary of Labor on or before such date;

. . .

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.

8 U.S.C. § 1255(i)(1). Thus, after the 2000 amendments, § 1255(i) effectively forgives a period of illegal stay for any alien who is the beneficiary of a labor certification application or an immigrant visa petition filed on or before April 30, 2001. See Figueras v. Holder, 574 F.3d 434, 436 (7th Cir.2009) ("[A]djustment under 8 U.S.C. § 1255(i) . . . waives any period of illegal stay in the United States if a visa petition was filed on behalf of the petitioner on or before April 30, 2001. . . ."). The term "grandfathered alien" appears in the implementing regulations, not the statutory text. The regulations use this term as a type of shorthand for an alien who is the beneficiary of an application for labor certification or a petition for an immigrant visa that was filed on or before April 30, 2001. See 8 C.F.R. § 245.10(a)(1)(i).

B. Adjustment of Status under Section 1255(i)

The fact that an alien is grandfathered for § 1255(i) purposes does not mean he is a fortiori eligible for an adjustment of status; it means only that he is "entitled to apply for adjustment of status." Ahmed v. Gonzales, 465 F.3d 806, 808 (7th Cir.2006) (emphasis omitted). Under § 1255(i), a grandfathered alien must make essentially the same eligibility showing required in any application under § 1255(a) for adjustment of status: (1) that "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence," and (2) that "an immigrant visa is immediately available to the alien at the time the [§ 1255(i)] application is filed." 8 U.S.C. § 1255(i)(2); see Ahmed v. Gonzales, 447 F.3d 433, 438 (5th Cir.2006) ("Section 1255(i) does not . . . create an automatic or a mandatory exception to § 1255(c)" in view of the fact that "the entire application for adjustment of status must meet with the discretionary approval of the Attorney General or his designee.").

Aliens who seek to adjust their status based on employment, as Lee does, are thus required to demonstrate that they are eligible for an employment-based visa and that an employment-based visa is immediately available. See Lendo v. Gonzales, 493 F.3d 439, 442 (4th Cir.2007). To do so requires the prospective immigrant to find a job with an employer willing to sponsor him through the time-consuming application process for labor certification and issuance of an immigrant visa. The prospective employer first must apply on behalf of the alien to the Department of Labor ("DOL") for a Labor Certification. See 8 U.S.C. § 1153(b)(3)(C); see also United States v. Ryan-Webster, 353 F.3d 353, 355 (4th Cir.2003). The DOL's issuance of a Labor Certification indicates that the DOL is satisfied that "(1) sufficient United States workers are not able, willing, qualified, and...