Butt v. Gonzales  

The US Second Circuit Court of Appeals recently ruled in the matter of Butt v. Gonzales where Petitioner sought review of a decision of the Board of Immigration Appeals (BIA) affirming a decision of the Immigration Judge (IJ) denying petitioner’s request for a continuance while his employer’s application for a labor certification was pending.  The Court granted the petition, vacating the BIA’s decision, remanding the case for the BIA.   

Muhammad Butt, a native and citizen of Pakistan, entered the US without inspection in February 2000, an shortly thereafter sought permanent residency under 8 USC § 1255; since he entered without inspection, he could only apply for status adjustment under section 204 of the Immigration & Nationality Act, and establish that he was physically present in the US on December 21, 2000.  The defendant contents that petitioner may not have been physically present in the US on this date.   

On April 6, 2001, petitioner married a US citizen, and his wife filed Form I-130 to classify Butt as an alien relative, and petitioner filed Form I-485 for a status adjustment.  Both forms were denied, because petitioner was a "no show" and thus defaulted.  Immigration and Naturalization Service (INS) commenced removal proceedings in July 2003, after denial of petitions.  

Petitioner countered the INS’ decision, advising the IJ ordering the deportation that he intended to seek adjustment of status on the basis of an employment-based immigrant visa.  Said visa was filed by Butt’s employer on December 30, 2003 and accepted for processing on January 7, 2004.  Petitioner then requested continuance of his removal proceedings while the application was pending; the IJ denied request because "the fact that there is as [pending] labor certification isn’t grounds for an adjournment."  

Both parties mutually argue whether it was an abuse of discretion for the IJ to deny a continuance while the application was pending.  Instead the Court declined to consider the question and instead remand the case to the BIA to consider antecedent questions regarding Butt’s eligibility for adjustment of status, the answers to which may bear consideration of whether the IJ abused her discretion in denying a continuance.   

The remand to the BIA was to consider (1) whether petitioner was physically present in the US on December 21, 2000, and (2)whether the section 204 petition for classification was "approvable when filed," as required by 8 CFR § 245.10(a)(1)(i).   

For (1), the Government argues that Butt has not met this burden because there is no evidence in the record that establishes his physical presence in the US on the date in question.  They claim that his I-140 employment-based visa petition filed by Butt’s employer states he entered on April 6, 2001.  Butt does not address this argument in his supplemental submission.   

For (2), Butt is the beneficiary of a section 204 petition for classification filed on or before April 30,2001, and this Court assumes that he was physically present in the US on December 21, 2000, thus fulfilling this portion section 204 requirement.  Nonetheless, the remand is based on determining the ambiguous meaning of "approvable when filed."  The Government contends that the phrase means that if it is "meritorious in fact." The defendant concedes that the record is unclea whether the spousal visa petition filed on Butt’s behalf was indeed, approvable when filed.  The Petitioner contends that "approvable when filed" status occurs if there is no evidence of fraud or if the application states a prima facie case for eligibility.  The murkiness of the statutory language contributed to the Court’s decision to remand.