Ogundipe v. Mukasey

• Decision Date: 02 September 2008
• Docket Number: No. 07-1075.,No. 07-1592.,07-1075.,07-1592.
• Citation: 541 F.3d 257
• Parties: Ezekiel Olufemi OGUNDIPE, Reverend, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. Ezekiel Olufemi Ogundipe, Reverend, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

541 F.3d 257

Ezekiel Olufemi OGUNDIPE, Reverend, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

Ezekiel Olufemi Ogundipe, Reverend, Petitioner, v. Michael B. Mukasey, Attorney General, Respondent.

No. 07-1075.

No. 07-1592.

United States Court of Appeals, Fourth Circuit.

Argued: May 14, 2008.

Decided: September 2, 2008.

ARGUED: David Christopher Drake, Johnson & Associates, PC, Arlington, Virginia, for Petitioner. Justin R. Markel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Randall L. Johnson, Johnson & Associates, PC, Arlington, Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Francis W. Fraser, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for Respondent.

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Petitions denied by published opinion. Judge SHEDD wrote the opinion, in which Judge TRAXLER joined. Judge GREGORY wrote a dissenting opinion.

OPINION

SHEDD, Circuit Judge:

Ezekiel Olufemi Ogundipe, a native and citizen of Nigeria, petitions for review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal and ordering his voluntary departure from the United States, and of the BIA's order denying his motion for reconsideration. Ogundipe contends that he is eligible to adjust his status without leaving the United States because he is a "grandfathered alien" who was the beneficiary of a special immigrant visa petition filed before April 30, 2001. The immigration judge ("IJ") and the BIA concluded that the visa petition on which Ogundipe relies was not "approvable when filed" and therefore denied his application to adjust status. Finding no error, we deny his petitions for review.

I

Ogundipe was admitted to the United States as a nonimmigrant B2 visitor on December 31, 1994. He overstayed his visa, which expired on June 30, 1995. In August 1997, He Cares Fellowship ("HCF"), a church located in Adelphi, Maryland, filed an I-360 Petition for Amerasian, Widow, or Special Immigrant Visa on Ogundipe's behalf (the "HCF Petition"), asserting that Ogundipe qualified for a "special immigrant" visa as a religious worker, as defined in 8 U.S.C. § 1101(a)(27)(C) (1997). Upon receipt of the HCF Petition, the Immigration and Naturalization Service ("INS")¹ requested additional information from HCF in a detailed letter identifying numerous evidentiary deficiencies in the HCF Petition. Specifically, the INS requested (1) evidence establishing that Ogundipe had two years of full-time work experience in religious work prior to August 1997; (2) evidence establishing that Ogundipe was authorized to conduct religious worship; (3) evidence establishing that Ogundipe would be employed full time in religious work, including Ogundipe's job title, description, commencement and termination dates of employment, weekly hours required, and wage and benefits offered; (4) evidence that HCF was able to pay the offered wage; (5) evidence of the number of members of HCF; (6) a list of HCF's salaried employees; and (7) evidence of HCF's net and gross annual income for 1995 and 1996. HCF failed to respond fully to the INS's requests, and the INS denied the petition. HCF appealed but failed to submit a brief; consequently, the appeal was dismissed.

In June 2001, Ark of Salvation International Church of Christ ("AS"), located in New Carrollton, Maryland, submitted a second I-360 petition (the "AS Petition") on Ogundipe's behalf. Like the HCF Petition, the AS Petition sought a visa for Ogundipe on the basis that he qualified as a special immigrant religious worker, specifically, the Senior Pastor of AS. The AS Petition was granted in 2002.

In 2004, the INS initiated removal proceedings against Ogundipe for remaining in the United States longer than permitted. Ogundipe then filed an Application to Register Permanent Residence or Adjust Status, based on § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i). Section 245(i) permitted certain aliens who were otherwise ineligible to adjust their status — such as an alien, who, like Ogundipe, "continue[d] in or accept[ed] unauthorized employment prior to filing an application for adjustment of status" — to pay a penalty and have their status adjusted without having to leave the United States. Section 245(i) expired as of April 30, 2001, except for those aliens who are "grandfathered." "Grandfathered alien" is defined in 8 C.F.R. § 1245.10(a) to include "an alien who is the beneficiary ... of ... [a] petition for classification," such as an I-360 petition, "which was properly filed with the Attorney General on or before April 30, 2001, and which was approvable when filed."² "Approvable when filed" is in turn defined in § 1245.10(a)(3):

Approvable when filed means that, as of the date of the filing of the qualifying immigrant visa petition under section 204 of the Act ..., the qualifying petition ... was properly filed, meritorious in fact, and non-frivolous ("frivolous" being defined herein as patently without substance). This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed.

Ogundipe argued in the removal proceedings that he was grandfathered on the basis of the HCF Petition and therefore eligible to adjust his status without leaving the United States. The IJ disagreed, finding that the HCF Petition was not "meritorious in fact" because there had never been a prima facie showing that Ogundipe was eligible for classification as a special immigrant. The IJ noted that the ultimate denial of the HCF Petition by the INS, standing alone, did not preclude a finding that the petition was approvable when filed. Nevertheless, she concluded that numerous evidentiary deficiencies in the petition, which HCF never remedied despite the INS's request for additional information, demonstrated that the HCF Petition was not meritorious in fact at the time it was filed. Accordingly, the IJ denied Ogundipe's application for adjustment of status, but granted his alternative request for voluntary departure.

Ogundipe appealed to the BIA, which dismissed his appeal. The BIA agreed with the IJ that Ogundipe had failed to demonstrate that the HCF Petition was approvable when filed based on the circumstances that existed at the time of its filing. Ogundipe then filed a motion for reconsideration, which the BIA denied. Ogundipe now petitions for review of both BIA orders.

II

We review the decision of the IJ as supplemented by the BIA. See Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir.1995). We review de novo the legal determinations below, according appropriate deference to the BIA's interpretations of the INA and attendant regulations. See Perez-Vargas v. Gonzales, 478 F.3d 191, 194 (4th Cir.2007). We will uphold the factual findings below if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38, (1992) (internal citation omitted).

A.

Because the parties agree that the HCF Petition was properly filed and non-frivolous, the only issue presented in this appeal is whether it was meritorious in fact.³ Before analyzing this question, we first address the scope of the evidence the IJ may consider in making that determination. Ogundipe contends that the determination of whether a visa petition is meritorious in fact must be based on the "totality of the circumstances" that existed at the time of the initial filing and not merely on the evidence the petitioner actually possessed at the time or submitted with the petition. The government disagrees, arguing that only the evidence on record at the time of the initial filing may be considered, and thus the actual denial of the HCF petition by the INS forecloses any finding that it was meritorious in fact and therefore approvable when filed.

We agree with Ogundipe that the determination of whether a visa petition is approvable when filed is not limited to the question of whether the petition was actually approved. We find nothing in the applicable statutes or regulations that prevents an IJ in removal proceedings from considering other evidence that a petition was approvable when filed, even if that evidence was never submitted in conjunction with the original petition. This conclusion flows from the text of § 1245.10(a)(3). "Meritorious" means "meriting a legal victory" or "having legal worth," Black's Law Dictionary (8th ed.2004), but does not require actual legal success. Moreover, § 1245.10(a)(3) requires that the determination of whether a petition is meritorious in fact "be made based on the circumstances that existed at the time the qualifying petition or application was filed." This provision contemplates that evidence other than that actually submitted in support of the petition might be considered for purposes of determining whether an alien is grandfathered.

The BIA's decisions support our conclusion. In this case, the BIA explained that the IJ properly based her decision on "the circumstances that existed at the time" the HCF Petition was filed, J.A. 24, and "did not rely on the ultimate denial" of the petition in concluding it was not approvable when filed, J.A. 2. The BIA's subsequent decision in In re Jara Riedro, 24 I. & N. Dec. 267 (BIA 2007), discussed the issue more fully. When considering whether an alien was grandfathered on the basis of a visa petition filed by his U.S. citizen wife, the BIA noted that the denial of that petition was not itself dispositive of whether the petition was meritorious in fact. Rather, that determination was properly made by the IJ based both on the visa petition itself and on evidence offered in removal proceedings. See also Lasprilla v. Ashcroft, 365 F.3d 98, 101 (1st Cir. 2004) (indicating that alien...