News From the Courts

Posted on: June 28th, 2017
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CA6 Finds BIA Properly Found Petitioners Ineligible to Adjustment

Facing the possibility of removal from the United States, Sofokli and Mirela Gazeli, natives and citizens of Albania, requested an Immigration Judge (IJ) approve two sets of applications to adjust their immigration status. The IJ determined that they were ineligible for adjustment under their first set of applications, and that the IJ did not have jurisdiction to consider their second. The Board of Immigration Appeals (BIA) affirmed these conclusions. The Gazelis put forth a petition of review which raised issues of first impression with regards to the interpretation and validity of two immigration regulations. Since the BIA properly applied federal law and because the contested regulations were reasonable interpretations of the Immigration and Nationality Act (INA), the court of appeals denied the petition for review.

Interpretation of the Immigration and Nationality Act (INA) was an important aspect of the Gezelis’ petition for review. Under the INA, an alien attempting to become a permanent resident can do so by obtaining an employment visa, which is a three-step process. First, the potential employer of the alien needs to apply for and receive labor certification from the Department of Labor (DOL). That employer must then file an I-140 petition for a work visa with the Citizenship and Immigration Services (USCIS). Finally, if USCIS approves the petition, the alien must then apply to adjust his or her immigration status.

In July 2001, Sofokli Gezeli arrived in the United States under a B-2 visitor visa, and his wife Mirela arrived just a few months later. Though Sofokli’s visa allowed him to remain in the country until January 1, 2002, the Gezelis stayed in the United States without authorization after that date while Sofokli tried to acquire an employment visa. Four months after the expiration of Sofokli’s visa, on May 6, 2002, his employer applied for labor certification for Sofokli, which the DOL granted on April 15, 2003. His employer filed an I-140 petition for a work visa for Sofokli on October 24, 2003. The petitioners submitted their application to adjust their status from visitor to permanent resident on the same day, with Mirela applying to be her husband’s beneficiary. USCIS granted both advance parole, permitting them to leave the United States and return at a later date. The Gezelis left the United States and returned in April 2004 to wait for adjudication of their applications. In February 2005, USCIS approved the work-visa petition filed by Sofokli’s employer, but a few weeks later, USCIS denied their adjustment applications, citing an INA provision which bars aliens from being able to adjust their status if they have accrued more than 180 days in the United States without “lawful status”. After their applications were denied, the petitioners departed once again and were paroled in 2005 into the United States. Once they returned, they attempted to file a second set of adjustment applications, which USCIS denied in September 2006. A few months following the denial, the Department of Homeland Security served the Gezelis with a notice to appear before an Immigration Judge, on the grounds that they remained in the country without authorization and were thus subject for removal. Before the IJ, the Petitioners denied removability and renewed both their first and second adjustment applications. The requests were denied by the IJ who ordered their removal to Albania, because the judge found that Sofokli accrued more than 180 days out of “lawful status” at the time of his first application. The Immigration Judge decided that though Sofokli’s lawful status expired on January 1, 2002, he failed to apply to adjust his status until October 24, 2003. Sofokli argued that his lawful status remained intact because of his employer’s pending labor certification request and work-visa petition, but the IJ rejected his argument, and held that she lacked jurisdiction to consider the second set of applications. The Board of Immigration Appeals, acting through a single judge, issued a separate opinion affirming all aspects of the IJ’s decision, after which the Petitioners timely filed a petition for review. The Gazelis asserted their eligibility for adjustments in their petition for review under two sets of adjustment applications, and the court addressed each serially.

There is framework dictating a Petitioner’s eligibility to adjust his or her immigration status. Although generally the beneficiary of an approved work visa is eligible, there is a category of disqualified individuals who are “in unlawful immigration status” on the date they file their applications or who “failed (other than through no fault of their own or for technical reasons) to maintain continuously al lawful status since entry into the United States.” The eligibility bar also comes with an exception; beneficiaries of an approved work-visa petition can adjust status as long as they have not accrued more than 180 days out of “lawful status” prior to their adjustment application. Sofokli’s visitor visa expired on January 1, 2002, and they filed their first adjustment applications with USCIS on October 24, 2003, not within the 180-day grace period previously outlined. Thus, the BIA came to the conclusion that they were ineligible for adjustment, a conclusion which was questioned by the petitioners. Their first argument is that their application, which was filed on May 6, 2002, counted the time in unlawful status while it was pending, making his duration in lawful status only 125 days. This argument hinges on an improper interpretation of “lawful status.” There are six categories of lawful status recognized by the Attorney General; not included on this list is a category for pending labor-certification application. The petitioners argued this omission to be an “unreasonably narrow construction” of lawful immigration status. They claimed that seeking adjustment of status through an approved work visa can often take more than 180 days for completion, yet once an employer starts the process, the B-2 visitor visa holder can have difficulty demonstrating the nonimmigrant intent needed to extend the visa. According to the petitioners, the short eligibility window, the difficulty of extending visitor status while the DOL processes a labor certification, and narrow definition of lawful status all came together to “exclude from adjustment of status eligibility the very noncitizens who are going through the mandatory preliminary steps of applying for adjustment status.” The court of appeals disagreed with these sentiments. The court contested that merely seeking to extend a visitor visa does not equate to efforts to immigrate. Nothing prohibits B-2 visa holders from attempting to adjust their status, but they are required to satisfy eligibility requirements which were imposed by Congress. Because the pending labor-certification did not grant “lawful status,” Sofokli’s argument that he did not accrue more than 180 days out of status was rejected by the court.

After USCIS denied the first set of applications, the petitioners received advanced parole, left the country, and upon returning to the United States, filed a second set of applications. These were also denied by USCIS, and the Immigration Judge decided it lacked jurisdiction to adjudicate them in the removal proceedings. This was affirmed by the BIA, and in their petition for review, the Gazelis argued that the IJ did in fact have jurisdiction, a point with which the court of appeals disagreed. For these reasons, the petition for review was denied by the court.

For more information, view the full case.

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CA7 Stays Order of Removal While Petition for Review Considered

Ricardo Sanchez, an illegal immigrant from Mexico, submitted a petition for review of the refusal of the Board of Immigration Appeals (BIA) to reopen its order of removal for him, as well as a motion to stay his removal pending a definitive ruling on his petition, and a statement from the Department of Justice opposing both the petition and the motion.

Sanchez conceded his removability at a hearing before an Immigration Judge (IJ), but applied for cancellation of removal for nonpermanent residents. In order to obtain the relief he sought, he had to demonstrate his both physical presence in the United States for a minimum of 10 years and his good moral character over that span. Furthermore, Sanchez was required to demonstrate that his removal would directly result in “exceptional and extremely unusual hardship” for his children who are U.S. citizens. His three children are aged 15 months, six years, and eight years, and his wife, with whom he and his children live, lacks legal status. In his testimony, he asserted his role in the family as the primary financial provider, maintaining employment at the same pizza restaurant for the past eighteen years and his fear that the wages he would earn in Mexico would inflict extreme hardship on his children. He took responsibility for four convictions of driving under the influence in the past sixteen years and two violations of the conditions of his bond. The IJ decided the DUI convictions constituted a breach of good moral character which Sanchez was required to demonstrate. Also, because Sanchez failed to answer questions about his family’s plans to follow him to Mexico, the Immigration Judge decided that he failed to adequately demonstrate that his removal would cause exceptional and extremely unusual hardship for his children. Thusly, the Immigration Judge denied the application for cancellation of removal.

Sanchez appealed to the Board of Immigration Appeals, which affirmed the decision of the IJ and dismissed the appeal. Sanchez then filed a timely motion with the BIA to reopen his appeal. Sanchez, now represented by new counsel, asserted his original counsel’s failure to properly prepare him for his hearing before the IJ. A direct result of this failure was his omission in his testimony of the Spanish fluency of his two older children; they were native English speakers who spoke little Spanish, which he argued would cause hardship if sent to Mexico. Furthermore, his youngest child, who at the time of the removal hearing had yet to be born, was diagnosed with delayed motor development, which would require three months of weekly physical therapy. Finally, he also omitted that he had filed tax return for the preceding several years. The BIA, again, rejected his appeal.

There was, before the court of appeals, a threshold question whether the court had jurisdiction to review the denial of Sanchez’s motion to reopen. The question stemmed from the fact that the court would not have jurisdiction over the request for cancellation of removal. The court did have jurisdiction to review questions of law, and precedent decisions permitted the review of a Board decision to deny a motion to reopen a removal case. The First Circuit, citing another precedent case, asserted jurisdiction over a motion to reopen a case where the petitioner, similar to Sanchez, was seeking a form of discretionary relief from removal which otherwise would not be reviewable by the court. In the case of Sanchez, the government did not respond to his invocation of the precedent case. The Seventh Circuit exercised its right to review the Board’s denial of Sanchez’s motion to reopen and decided to order Sanchez’s removal stayed pending its review of the Board’s denial of his motion for reconsideration. Though the Board noted that Sanchez included new evidence in his motion which supported his ineffective-assistance-of-counsel claim, but the Board concluded that none of the evidence “would have likely altered the outcome of this care with regard to the hardship that would accrue to his children,” without expounding upon its reasoning. Though the Board is not required to address every aspect of rationale behind its conclusions, according to the court, “a blanket rejection of all the alien’s evidence precludes meaningful review of its decision.” Furthermore, the court found the government failed to respond to Sanchez’s argument that his family will suffer harm if he is removed to Mexico. Being the primary source of income for his household of three children and wife, Sanchez was concerned that he would not be able to support his family who would remain in Ohio with the wage he would make in Mexico. Also, if he is removed and his wife has to go back to work to support the family, his youngest son will be unable to continue with the therapy he needs. He also questions the priority placed upon his removal, since its motivation was not based upon his criminal convictions. Considering his removal’s effect upon the well-being of his family, the court concluded that it should stay his order of removal until his petition for review of the decision of the BIA denying his motion to reopen is reviewed.

For more information, view the full case.

 

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