Xiao Lu Ma v. Sessions

• Decision Date: 02 November 2018
• Docket Number: No. 15-73520,15-73520
• Citation: 907 F.3d 1191
• Parties: XIAO LU MA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

907 F.3d 1191

XIAO LU MA, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-73520

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2018 San Francisco, California

Filed November 2, 2018

Jean Wang (argued), Wang Law Office PLLC, Flushing, New York; Don P. Chairez, Law Offices of Don Chairez, Long Beach, California; for Petitioner.

Robert Dale Tennyson Jr. (argued), Trial Attorney; Terri J. Scadron and Carl McIntyre, Assistant Directors; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-792

Before: Eugene E. Siler,^* Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.

PAEZ, Circuit Judge:

Navigating the labyrinth that is the worker visa, employment authorization, and status adjustment process under the Immigration and Naturalization Act ("INA") is not for the faint of heart. So technical and so complex are the INA’s requirements that unlucky petitioners may find themselves in removal proceedings without ever realizing that their status was in jeopardy to begin with. As a result, avoiding removal often hinges on the skill and knowledge of one’s employers and their lawyers, whose hands—like those of Ariadne’s—may or may not hold the red thread out.

Xiao Ma, the beneficiary of an H-1B visa, petitions for review of his final order of removal. Ma’s employer filed for an extension of his H-1B visa, but it was denied, and his employer failed to file an application for status adjustment within 180 days of the expiration of his H-1B visa. Because the application to extend the H-1B visa was denied, Ma was without lawful status in this country for 331 days before he applied to adjust his status—well over the 180 days permitted by 8 U.S.C. § 1255(k)(2)(A), which would have otherwise protected him from removal. He was, however, legally authorized to work in the country during the months between the expiration of his H-1B visa and the denial of his application for an H-1B extension pursuant to 8 C.F.R. § 274a.12(b)(20). Nonetheless, because 8 C.F.R. § 1245.1(d) does not recognize regulatory employment authorization as conferring lawful immigration status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A), the Board of Immigration Appeals ("BIA") correctly concluded that Ma is ineligible for status adjustment. We therefore must deny Ma’s petition for review.

I.

Nowhere is the complexity of the INA’s worker visa, employment authorization, and status adjustment process more evident than in the facts undergirding Ma’s removal proceedings.

In 2003, Ma, a citizen of the People’s Republic of China with a bachelor’s degree in computer science and technology, accepted a job offer from the Law Offices of Qiang Ma ("Ma Law"), a small law firm based in Alhambra, California, for the position of computer analyst. Ma Law successfully applied for an H-1B specialty occupation visa on Ma’s behalf. The visa was valid from September 10, 2003 to August 4, 2006. At some point in July 2006, shortly before the visa was set to expire, Ma Law applied for an extension of Ma’s H-1B status by filing a form I-129, Petition for a Nonimmigrant Worker. Half a year later, on January 9, 2007, the Director of the California Service Center of the United States Citizenship and Immigration Services ("USCIS") denied Ma Law’s I-129 petition, because Ma Law had failed to submit "suitable evidence to justify that [Ma’s] continued duties would be in line with that of a specialty occupation worker."¹

Ma Law appealed the Director’s determination to the Administrative Appeals Office ("AAO") on February 2, 2007, a month after the Director denied his petition. While that appeal was pending, Ma Law filed three concurrent applications on Ma’s behalf on July 2, 2007: (1) an I-485 application for adjustment of status to permanent resident; (2) an I-140 petition for an alien worker; and (3) an I-765 application for employment authorization with the Nebraska Service Center. The USCIS approved the I-765 application for employment authorization on September 26, 2007. By this point, Ma had been working in the country without a valid visa for 417 days.

On January 9, 2008, the AAO dismissed Ma Law’s appeal of the Director’s decision to deny its application to extend Ma’s H-1B visa. Citing that dismissal, the Director of the Nebraska Service Center denied Ma Law’s I-485 application to adjust Ma’s status on September 25, 2009.² The Director concluded that because Ma had been "engaged in unauthorized employment" for 418 days³ —well over the 180 days permitted by 8 U.S.C. § 1255(k)(2) —he was ineligible for status adjustment. The Director also concluded that Ma was ineligible to be grandfathered in as the beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001, because no one had filed a visa petition on his behalf on or before April 30, 2001. Ma Law filed a motion to reopen the decision on October 29, 2009, which the USCIS denied on December 29, 2009. Ma Law’s appeal of the denial was dismissed on January 29, 2010.

The Department of Homeland Security ("DHS") initiated removal proceedings against Ma on May 3, 2010 for overstaying his H-1B visa. That year, Ma left Ma Law and joined MGM Resorts Corporation as a senior business analyst, having successfully earned his MBA at San Diego State University two years prior. At his hearing on February 3, 2014, Ma denied that he had remained in the United States past August 4, 2006 without authorization from the Immigration and Naturalization Service ("INS") or DHS.⁴ He also requested adjustment of status as relief from removal.

Counsel for Ma argued at the removal hearing that 8 C.F.R. § 274a.12(b)(20), which authorizes petitioners to "continue employment with the same employers for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay" while a timely application for an extension is pending, conferred lawful status on Ma for the period between August 4, 2006, when his H-1B visa expired, and January 9, 2007, when the Director first denied Ma’s I-129 application for an extension. Under this theory, Ma would have been without lawful status for only 174 days before he applied for adjustment of status, which would fall within 8 U.S.C. § 1255(k) ’s 180-day threshold. The IJ rejected Ma’s argument. Relying on Matter of Rotimi , 24 I. & N. Dec. 567 (BIA 2008), the IJ concluded that employment authorization was not the same as lawful status and that even though Ma had maintained valid employment up to January 9, 2007, that did not mean that Ma had "maintained a lawful nonimmigrant status while the request for employment authorization was pending." By the IJ’s calculations, Ma had been living in the United States without lawful status from August 5, 2006, when his H-1B visa expired, to July 2, 2007, when he filed his application for status adjustment with the USCIS—a period of 331 days.⁵ As a result, the IJ denied Ma’s application for adjustment of status.

The IJ further concluded that although Ma’s parents were granted political asylum in 2012 for dissident activity, Ma was over 21 years old at the time his parents’ asylum applications were filed. As a result, Ma was ineligible for asylum as a dependent. Lastly, the IJ concluded that Ma was ineligible to be grandfathered in as the beneficiary of an immigrant visa petition or labor certification application filed on or before April 30, 2001.

The removal hearing revealed that Ma was an exemplary employee at MGM resorts and had recently been voted employee of the year for his work as a senior business analyst. Moreover, as the only child in his family, Ma had been the sole source of support for his parents—neither of whom speak English—ever since they were granted asylum in the United States. Removal would bar Ma from returning to this country to reunite with his parents for at least a decade. See 8 U.S.C. § 1182(a)(9)(B). Recognizing the "sympathetic" facts in Ma’s case, the IJ nonetheless concluded that his hands were tied by the "frustrations and technicalities concerning the very technical requirements for applying for adjustment of status." Thus, even though there was evidence that Ma was the recipient of "numerous approvals of requests for employment authorization from USCIS continuing to [the date of the removal hearing]," the IJ ordered Ma removed to the People’s Republic of China because 8 C.F.R. § 274a.12(b)(20) ’s grant of employment authorization did not confer lawful status for purposes of status adjustment under 8 U.S.C. § 1255(k)(2)(A).

The BIA dismissed Ma’s appeal from the IJ’s order. The BIA agreed with the IJ that employment authorization under 8 C.F.R. § 274a.12(b)(20) does not confer lawful nonimmigrant status for purposes of status adjustment. Accordingly, the BIA concluded that Ma was without lawful status from August 5, 2006 to July 2, 2007, a period of over 180 days, which precluded Ma from establishing his eligibility for adjustment of status.

Ma timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s final order of removal. "We review the BIA’s determination of issues of law de novo , deferring to the BIA’s interpretation of an immigration statute where that interpretation is ‘based on a permissible construction of the statute.’ " Rebilas v. Mukasey , 527 F.3d 783, 785 (9th Cir. 2008) (quoting Parrilla v. Gonzales , 414 F.3d 1038, 1041 (9th Cir. 2005) ).

III.

The governing statute, 8 U.S.C. § 1255(k) allows petitioners to apply for adjustment of status under section 1255(a) as long as the petitioners, among other requirements, "ha[ve] not, for an aggregate period exceeding 180 days—(A) failed to maintain, continuously, a lawful status." The question presented on this appeal is a narrow...