Matovski v. Gonzales
| Decision Date | 15 June 2007 |
| Docket Number | No. 05-4534.,05-4534. |
| Citation | 492 F.3d 722 |
| Parties | Ljupco MATOVSKI; Violeta Matovska, Petitioners, v. Alberto GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Marshal E. Hyman, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. Gjon Juncaj, United States Department of Justice, Washington, DC, for Respondent. ON BRIEF: Marshal E. Hyman, Russell R. Abrutyn, Marshal E. Hyman & Associates, Troy, Michigan, for Petitioners. Gjon Juncaj, Blair T. O'Connor, United States Department of Justice, Washington, DC, for Respondent.
Before: MERRITT and BATCHELDER, Circuit Judges; GWIN, District Judge.*
GWIN, D. J., delivered the opinion of the court in which, MERRITT, J., joined. BATCHELDER, J. (pp. 740-43), delivered a separate dissenting opinion.
With this case, Petitioners Ljupco Matovski and Violeta Matovska, his wife, (together, the "Matovskis") seek review of a decision of the Board of Immigration Appeals ("Board") that found them deportable. Petitioners say they qualify for employment-based permanent resident status. The Respondent, United States Attorney General Alberto R. Gonzales, disagrees.
The Matovskis are natives and citizens of Macedonia. On May 23, 1996, the United States admitted the Matovskis as B-2 nonimmigrants visiting for pleasure ("B-2 visitor status"). The B-2 visitor status applies to aliens who have a residence in a foreign country that they have no intention of abandoning and who are temporarily visiting the United States for pleasure. 8 U.S.C. § 1101(a)(15)(B). From May 23, 1996, through November 20, 2000, the Immigration and Naturalization Service ("INS") extended the Matovskis' B-2 visitor status eight times, which permitted them to remain in the United States.
While in the United States under B-2 visitor status, Petitioner Matovski obtained an offer of employment from Nikolic Industries, Inc. ("Nikolic Industries"). In support of its employment offer, Nikolic Industries initiated a three-step status adjustment process on Matovski's behalf, petitioning for him to become a permanent resident of the United States. After the Department of Labor earlier found there were insufficient qualified United States workers to perform the Nikolic work and the INS found Matovski was qualified for the position, the INS denied the petitioners' Application to Register Permanent Residence or Adjust Status ("I-485") on April 11, 2002, the final step in the employment-based adjustment of status process. The INS denied the application after finding that the Matovskis procured or sought to procure their B-2 visitor for pleasure visa through willful misrepresentation of a material fact. 8 U.S.C. § 1182(a)(6)(C)(i).
Upon denying Petitioners' adjustment of status applications, the INS issued Notices to Appear ("NTA"), which placed Petitioners in removal proceedings. At the removal proceedings, Petitioners renewed their adjustment of status applications and argued that they were previously authorized to remain in the United States while pursuing their adjustment of status applications. On July 22, 2004, the Immigration Judge denied Petitioners' applications for relief, finding the Matovskis "present in violation of law" for remaining in the United States past the expiration of their B-2 visitor status and, therefore, "deportable" under Section 1227(a)(1)(B) of Title 8 of the United States Code.
With regard to Petitioners' applications for discretionary relief, the Immigration Judge found Petitioners inadmissible for failing to establish that immigrant visas were immediately available to them. Specifically, the Immigration Judge found that she lacked jurisdiction to determine the portability of a valid I-140 petition pursuant to 8 U.S.C. § 1154(j). In addition, the Immigration Judge found: (1) Petitioners were inadmissible because they willfully misrepresented a material fact to obtain an immigration benefit by filing two extension of status applications containing false information; (2) Petitioners were ineligible for adjustment of status as a matter of discretion; and (3) Petitioners were ineligible for voluntary departure as a matter of discretion.
The petitioners appealed the decision of the Immigration Judge to the Board of Immigration Appeals. Separately, they filed a Request for Investigation against their former attorney, Donald Dobkin, with the State of Michigan's Attorney Grievance Commission. To some degree, Attorney Dobkin assisted the petitioners in falsely answering a question on their applications to renew their status as B-2 visitors. On those renewal applications, the Matovskis' claimed that they were not, at the time of the renewal applications, otherwise seeking immigrant status. In actuality, the Matovskis were also seeking employment-based adjustment of status at that time. B-2 visitor status is designed for individuals who do not intend to abandon their foreign residence and who only intend to visit the United States temporarily. Obviously, the Matovskis were pursuing immigrant status at the times they completed these applications to extend their B-2 visitor status.
On November 23, 2005, the Board of Immigration Appeals affirmed the Immigration Judge's decision that the petitioners were removable, as well as the Immigration Judge's ruling that she lacked jurisdiction over portability determinations pursuant to 8 U.S.C. § 1154(j). However, the Board reversed the Immigration Judge's discretionary denial of the petitioners' voluntary departure applications. The Board made no determination regarding whether petitioners were inadmissible because they willfully misrepresented a material fact to obtain an immigration benefit. The Board also made no review of the Immigration Judge's discretionary denial of the Matovskis' application to become residents.
With this appeal, the petitioners request review of the following issues: (1) whether the Immigration Judge had jurisdiction to apply the portability provisions of 8 U.S.C. § 1154(j) when adjudicating the petitioners' adjustment of status applications; (2) whether the Immigration Judge violated the petitioners' right to due process by finding the petitioners inadmissible for misrepresentation although the Notice to Appear did not formally charge this ground of inadmissibility; and (3) whether the Board's failure to review the Immigration Judge's finding of misrepresentation prevents review by this Court.
Initially, this opinion briefly reviews the employment-based adjustment of status process and the two stages of removal proceedings. Second, we examine the factual record and procedural history of the instant case in further detail. We then address the Immigration Judge's primary rationale for denying the petitioners' adjustment of status applications: the belief that she lacked jurisdiction to make portability determinations under 8 U.S.C. § 1154(j). Finally, we address the Immigration Judge's finding of inadmissibility for misrepresentation of a material fact and her discretionary denial of Petitioners' applications, both of which the Board declined to review on the merits.
For the following reasons, we AFFIRM IN PART and REVERSE IN PART the Board's decision. We REMAND this case to the Immigration Judge for (1) initial determination whether immigrant visas were immediately available when Petitioners originally filed their applications for adjustment of status; and (2) adjudication of Petitioners' applications for adjustment of status in compliance with 8 U.S.C. § 1154(j).
For an alien to adjust their status to that of a lawful permanent resident based upon a potential employment opportunity, the alien must successfully complete a three-step process. The alien's potential employer initiates the first two stages. First, the employer files an ETA-750, Application for Alien Employment Certification, with the Department of Labor. The Department of Labor grants certification where it can be shown that there are insufficient qualified U.S. workers available and willing to perform the work at the prevailing wage paid for the occupation in the area of intended employment. 8 U.S.C. § 1153(b)(3).
If the Department of Labor approves the Application for Alien Employment Certification, the employer may then file an I-140, Petition for Alien Worker with the INS. The INS examines evidence filed with the petition to decide whether the alien is eligible for the benefit requested. For example, the INS would determine whether an alien (1) has a labor certification; and (2) meets the minimum requirement of two years of specialized training or experience needed for the alien to qualify as a "skilled worker." 8 U.S.C. § 1153(b)(3)(A)(i).
If the INS approves the I-140, the alien files an I-485, Application to Register Permanent Residence or Adjust Status, the third and final stage of the employment-based adjustment of status process. 8 U.S.C. § 1255(a) establishes three requirements for an alien to become eligible for a status adjustment to an alien lawfully admitted for permanent residence: "(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." If the alien satisfies each of these requirements, the INS will approve the I-485 and the alien will become a lawful permanent resident of the United States.
If the INS denies the I-485, the agency may initiate removal proceedings against the alien by issuing a Notice to Appear. The Notice to Appear must contain "the charges against the alien and the statutory provisions alleged to have been violated." 8 U.S.C. § 1229(a)(1)(D). See also 8 U.S.C. § 1229a(a...
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