De Oliveira v. Wilkinson
| Decision Date | 22 February 2021 |
| Docket Number | No. 19-1258,19-1258 |
| Citation | 988 F.3d 597 |
| Parties | Marcio Batista De OLIVEIRA and Debora Dos Santos Oliveira, Petitioners, v. Robert M. WILKINSON, Acting Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Stephanie Marzouk, Somerville, MA, for petitioners.
Todd J. Cochran, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before Howard, Chief Judge, and Thompson, Circuit Judge.**
Marcio and Debora Oliveira, a husband and wife who are natives and citizens of Brazil, petition for review of a ruling of the Board of Immigration Appeals ("BIA") affirming the determination of an Immigration Judge ("IJ") that they were not eligible for an adjustment of status pursuant to the "grandfathering" provisions of § 245(i) of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1255(i). The Oliveiras argue that the BIA applied incorrect standards in determining that a labor certification application ("LCA") filed on behalf of Marcio Oliveira was not "approvable when filed." The Oliveiras also argue that the BIA erred in denying their motion to remand, which contained additional evidence.
Because the IJ and BIA did not appropriately focus their inquiry, we grant the petition for review and remand to the BIA for further proceedings.
We first recount the underlying facts and then, because our task is to evaluate their decisions, summarize the proceedings before and judgments of the IJ and BIA.
Marcio and Debora Oliveira independently came from Brazil to the United States on tourist visas in 2000, but both of them overstayed their visas. The two met and married in 2002 and have three children who are United States citizens.
Sometime in late 2000 or early 2001, Marcio Oliveira became aware of the INA and the "grandfathering" provisions of § 245(i) that would allow individuals meeting specified criteria to remain legally in the United States with qualifying visa petitions or labor certification applications filed on or before April 30, 2001. Oliveira contacted Florida attorney Alan Glueck and was told that Glueck would assist Oliveira in finding an employer with a qualifying job opening who would then file an LCA on behalf of Oliveira. Glueck's office requested, and Oliveira provided, records about Oliveira's employment in Brazil with an accounting company prior to coming to the United States. With Glueck acting as its agent, NF Business Corporation filed an LCA naming Oliveira as the beneficiary for the position of "Clerk-Typist." The LCA had a priority date of April 24, 2001.
After the LCA was filed, Glueck was investigated and subsequently disbarred for assisting his business partner in the unlicensed practice of law. Another Florida attorney, Scott Kimmel, contacted Oliveira to inform him of the investigation into Glueck. Kimmel's office connected Oliveira with an individual named Ron Thomas, whom Oliveira understood to be investigating Glueck on behalf of the federal government. Oliveira spoke with Thomas on the phone and answered Thomas's questions about Glueck. Oliveira understood that Kimmel and his office would be taking over Glueck's representation of Oliveira in connection with the LCA. Oliveira testified at the hearing before the IJ that he made attempts to get in touch with Kimmel about the LCA, but never received any updates or copies of the relevant paperwork. As a result, the Oliveiras lost track of the LCA and its status.
The record before the IJ did not include a copy of the LCA itself or any paperwork regarding the approval or denial of the LCA. We do know, however, that Oliveira never received a visa as a result of the LCA, never worked for NF Business Corporation, never visited its offices, was never extended a formal job offer by NF Business Corporation, never had an official job interview with NF Business Corporation, and, at the hearing before the IJ, did not have an understanding of the company's business. Oliveira also did not have a working understanding of the responsibilities associated with the prospective job, beyond knowing that "it was like an office job" and testifying that he believed that Glueck and NF Business Corporation had chosen the job based on the qualifications and work experience that Oliveira had provided to Glueck and his colleagues.
In September 2004, the Oliveiras were each served with a Notice to Appear, neither of which contained a date or time for a hearing. In 2005, an IJ consolidated the Oliveiras’ cases and the Oliveiras admitted the factual allegations and conceded the charges of removability in their respective Notices to Appear. In 2015, the Boston & Maine Fish Company filed a new LCA naming Oliveira as the beneficiary, and on April 12, 2016, the Oliveiras applied to adjust their statuses pursuant to § 245(i).
After a hearing in which the Oliveiras were represented by counsel and Marcio Oliveira testified, the IJ issued an oral decision denying the Oliveiras’ application for adjustment of status and ordering them removed to Brazil. Relying on our decision in Santana v. Holder, 566 F.3d 237 (1st Cir. 2009), the IJ held that the Oliveiras bore the burden of demonstrating that the LCA was "approvable when filed," meaning it was: (1) properly filed, (2) meritorious in fact, and (3) non-frivolous. See 8 C.F.R. § 245.10(a)(3). The IJ found that Oliveira had not met that burden with respect to the "meritorious in fact" requirement based on the lack of documentary evidence provided by the Oliveiras and the lack of a relationship between Marcio Oliveira and NF Business Corporation. The IJ expressly declined to address whether the LCA was properly filed or non-frivolous. The IJ also did not discuss the BIA decision in Matter of Muhammad Imran Butt ("Matter of Butt"), 26 I. & N. Dec. 108 (BIA 2013), in which the BIA set forth a standard to determine whether an LCA, as distinct from a visa petition, was meritorious in fact. The IJ stated that "[t]his is a case that comes down to the respondent simply being unable to meet his burden."
On February 8, 2019, the BIA affirmed the ruling of the IJ. The BIA both adopted the IJ's ruling ("For the reasons stated by the Immigration Judge, we decline to disturb the Immigration Judge's determination.") and added its own legal rationale. The BIA quoted its prior decision, Matter of Butt, at length, stating that:
A labor certification is ‘meritorious in fact’ if it was ‘properly filed’ and ‘non-frivolous, [ ]so long as a bona fide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and where there is no evidence that the labor certification is based on fraud.’
(quoting Matter of Butt, 26 I. & N. at 116). The BIA concluded that, although he "acted with good faith and with due diligence," because Oliveira (1) had never met with the employer, (2) did not know the job requirements, and (3) never received a job offer from the employer, he had failed to demonstrate the existence of the employment relationship required by 8 C.F.R. § 245.10(a)(3) and Matter of Butt. Like the IJ, the BIA declined to address whether the LCA was "properly filed" or "non-frivolous," addressing only the "meritorious in fact" prong.
While their appeal to the BIA was pending, the Oliveiras filed a Motion to Remand containing new evidence that they claimed had been previously unavailable. The proffered evidence showed that Attorney Glueck's business partner, Elyane Bechtinger, was named as an officer of NF Business Corporation in 2002. Oliveira also offered an additional affidavit recollecting that he had spoken to Bechtinger about the prospective job at NF Business Corporation as part of his dealings with Glueck around the time that Oliveira submitted paperwork regarding his previous work experience, and that Oliveira's conversation with Bechtinger had served as a job interview for the position at NF Business Corporation, which she offered to him.
The BIA denied the Oliveiras’ Motion to Remand on the basis that the Oliveiras had failed to show that the evidence was previously unavailable. The BIA also found that the evidence would not change the outcome of the case because it was insufficient to show that the required employer/employee relationship existed.
We review the BIA's findings of law de novo and its findings of fact under the substantial evidence standard, "asking whether the BIA's determination is ‘supported by reasonable, substantial and probative evidence on the record considered as a whole.’ " Santana, 566 F.3d at 240 (quoting De Acosta v. Holder, 556 F.3d 16, 20 (1st Cir. 2009) ); see also Aguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017). "We consider BIA and IJ decisions together where the Board adopts and supplements the IJ's reasoning." Aguilar-Escoto, 874 F.3d at 336 (internal quotation marks omitted) (citing Martinez v. Holder, 734 F.3d 105, 111 n.15 (1st Cir. 2013) ). We review the BIA's decisions on Motions to Remand (or Reopen) for an abuse of discretion. See Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009) ; see also Ming Chen v. Holder, 722 F.3d 63, 66 (1st Cir. 2013).
The Oliveiras make three arguments on appeal: (1) the BIA applied an incorrect standard in determining whether the LCA was meritorious in fact; (2) the BIA erred in finding that the LCA was not meritorious in fact; and (3) the BIA erred in refusing to remand on the basis of the Oliveiras’ additional evidence. Because we agree with the Oliveiras’ first argument, we need not address the other two.
The Oliveiras argue that they are eligible for adjustment of status, "a process whereby certain aliens physically present in the United States may obtain permanent resident status ... without...
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