     Case: 10-60776     Document: 00511782990         Page: 1     Date Filed: 03/09/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 9, 2012

                                       No. 10-60776                        Lyle W. Cayce
                                                                                Clerk

EDUARDO CHAPA VILLA; MIREYA CHAPA; SAMANTHA CHAPA
GONZALEZ; EDUARDO CHAPA GONZALEZ; JESSICA CHAPA
GONZALEZ,

                                                  Petitioners

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent



                        Petition for Review of Decision of the
                           Board of Immigration Appeals


Before DEMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        This case exemplifies why the immigration law of the United States is
inexcusably complicated and in need of immediate revision.
        Mireya Chapa, her husband Eduardo Chapa Villa, and their three
children, challenge the decisions of the Immigration Judge (“IJ”) and Board of
Immigration Appeals (“BIA”) denying the family’s application for lawful


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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permanent resident (“LPR”) status. Mireya argues she is immediately eligible
for LPR status based on a Western Hemisphere priority date (“WHPD”) derived
from her parents’ immigration to the United States. For the following reasons,
we deny the Chapas’ petition and affirm the decision of the BIA.
                        FACTS AND PROCEEDINGS
        Mireya Chapa, her husband, Eduardo Chapa Villa, and their children,
Samantha Chapa Gonzalez, Eduardo Chapa Gonzalez, and Jessica Chapa
Gonzalez (the “Chapas”), are natives and citizens of Mexico who were admitted
to the United States on July 17, 2001, as nonimmigrant B-2 visitors. Their
visitor status expired on January 16, 2002, and they have remained in the
United States without authorization. During the immigration hearings leading
to this appeal, the Chapas, through counsel, have conceded their removability
pending their challenge to the IJ and BIA decisions.
        The foundation of the Chapas’ appeal that Mireya Chapa is eligible for a
WHPD finds its roots in the 1950s, when Mireya’s parents immigrated to this
country. Mireya’s father immigrated to the United States as a lawful permanent
resident on November 14, 1955. On February 26, 1956, Mireya’s father and
mother were married in Mexico and Mireya’s mother then immigrated to the
United States on May 25, 1956. Mireya’s parents had a son, born in the United
States, in 1957. Mireya was born several years later in Mexico on March 31,
1962.
        On April 24, 1962, Mireya entered the United States as a lawful
permanent resident in accordance with then-applicable internal Operating
Instruction 211 (“OI 211”) of the former Immigration and Naturalization Service
(“INS”). Her I-94 admission form was marked “Female child admitted for
permanent residence without immigrant visa in accordance with OI 211.” At an
unknown date, Mireya obtained an I-151 (green card). However, on December
17, 1975, she voluntarily surrendered the green card in exchange for an I-186

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nonresident alien border crossing card. The I-275 immigration form filed at the
time Mireya surrendered her green card included a notation by the INS official
that Mireya and her mother claimed to have been living in Mexico since 1967.
Mireya continued to live in Mexico and eventually married her current husband
there. The couple’s three children were all born in Mexico in 1985, 1989, and
1996.
        In July 2001, the Chapas entered the United States as a family based on
the aforementioned B-2 visitor visas. Prior to the expiration of their B-2 visitor
status, Mireya’s U.S.-born older brother filed an I-130 visa petition on December
26, 2001, on behalf of Mireya, with her husband and children listed as derivative
beneficiaries. See 8 C.F.R. § 204.1. On the same day, the Chapas filed I-485
applications for adjustment of status with the United States Citizenship and
Immigration Services (“USCIS”). On November 5, 2004, the I-130 visa petition
was approved, resulting in a visa priority date for Mireya, her husband, and
children, of December 26, 2001, the date the I-130 petition was filed.
        On November 15, 2004, USCIS denied the Chapas’ applications for
adjustment of status because there were no visas “immediately available” under
the current immigration quota system. 8 C.F.R. § 245.1(g)(1). In November 2004,
at the time of the USCIS decision, it is undisputed that the then-current priority
date for fourth preference Mexican immigrants, such as Mireya, was much
earlier than the December 2001 priority date established by the approved I-130
visa petition.
        Upon the Chapas’ motion, the case was reopened, with Mireya claiming
her date of birth in 1962 as a visa priority date based on a savings clause in a
1976 amendment to the Immigration and Nationality Act (“INA”) (discussed
below). After a second interview, USCIS again denied the Chapas’ applications
for adjustment of status in March 2007. The USCIS explained “you in fact
obtained your residency without an immigrant visa in accordance with OI 211

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and are not entitled to now use your date of birth under the savings clause as a
priority date to apply toward the approved visa petition filed on your behalf.”
      Based on the denial of the applications for adjustment of status, the
Department of Homeland Security (“DHS”) issued Notices to Appear for the
Chapas on April 24, 2007, charging them with removability pursuant to 8 U.S.C.
§ 1227(a)(1)(B), as aliens who after admission as nonimmigrants remained in the
United States longer than permitted. Their individual cases were consolidated
and a hearing was set before an IJ.
       The IJ sustained the charges of removability in light of the Chapas’
concession of overstaying their nonimmigrant visas. The Chapas informed the
IJ of their intent to seek relief from removal in the form of an adjustment of
status, and the court allowed them to brief the issue.
      In their brief, the Chapas argued to the IJ that Mireya was eligible for not
just one, but two, priority dates under the WHPD system established by the
1976 amendments to the INA—the date of her parents’ marriage in 1956 and her
date of birth in 1962. The Chapas argued that Mireya’s father was a “Western
Hemisphere applicant” and that Mireya’s mother was an “after-acquired spouse.”
Though acknowledging that a spouse acquired after a priority date has been
established cannot usually benefit from a priority date based on the marriage,
the Chapas argued that Mireya’s mother was accorded the date of her marriage
as a priority date because she was an after-acquired spouse who became a
spouse during a temporary absence abroad, based on an exception found in a
note to a 1970 regulation. See 22 C.F.R. § 42.62 note 2.3 (1970). The Chapas
apparently then conceded that this priority date of her parents’ marriage was no
longer available to Mireya because she was admitted for permanent residence
in 1962 with her mother based on the use of this date.
      However, the Chapas asserted that as a child of an “after-acquired spouse”
immigrating alone, she was entitled to use her date of birth as a second,

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alternative priority date. Mireya argued she was entitled to use her date of birth
as a priority date pursuant to the 1976 amendment to the INA, which provided
that aliens from Western Hemisphere countries who had registered for
immigration prior to 1977 could retain their priority dates (the above-termed
WHPD) for purposes of subsequent visa petitions filed on their behalf (the 1976
“savings clause”). Act of October 20, 1976, Pub. L. No. 94-571, 90 Stat. 2703 §
9(b).
        The IJ’s Decision
        The IJ issued a written decision pretermitting the Chapas’ applications for
adjustment of status. The IJ found that Mireya was ineligible to adjust status
because she could not show that an immigrant visa was “immediately available.”
The IJ also noted that Mireya’s fourth preference visa petition (the petition filed
by her brother) was filed on December 26, 2001, and that the then-current
priority date for fourth preference Mexican beneficiaries as of the hearing date
was December 15, 1994. Accordingly, the IJ found that Mireya failed to establish
that a visa was immediately available to her on the basis of the petition filed by
her brother on her behalf.
        The IJ further found that Mireya could not establish an earlier WHPD
under the 1976 savings clause. First, the IJ concluded that the savings clause
did not apply to Mireya because the provision only applies to aliens who (1) were
“chargeable to the numerical limitation” contained in a 1965 law imposing a
quota on family-based immigration from Western Hemisphere country
applicants, and (2) had established a priority date with a consular official prior
to the enactment of the quotas. Because Mireya entered the United States in
1962, the IJ found that she was not “subject to” the 1965 quota. The IJ
commented that by the time the quota was established, Mireya had already
gained permanent residence in the United States. Further, because Mireya was
not subject to the quota, she could not, and did not, establish a priority date with

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a consular official. The IJ concluded that Mireya was therefore not “waiting in
line” for a visa when the 1976 savings clause was passed because she had
already come and gone from the United States.
      In the alternative, the IJ concluded that, even if the savings clause applied
to Mireya, she had failed to establish that she had an earlier priority date
available pursuant to that clause. The IJ explained that she understood the
Chapas’ argument as follows: (1) when Mireya’s father entered the United States
in 1962, he effectively petitioned for her residence at the border, and (2) the 1962
“petition” was entitled to not one, but two priority dates: the date of Mireya’s
parents’ marriage and Mireya’s date of birth. The IJ then rejected this
argument, finding that the Chapas had conceded that one of these dates would
have been used when she entered the United States in 1962. The IJ further
found the Chapas’ argument that Mireya should retain the other date pursuant
to the 1976 savings clause “creative” but “unsupported by authority.” The IJ
noted that the Chapas cited no authority, and the IJ could find none, “suggesting
that an immigrant petition could entitle an immigrant to multiple priority dates
for one petition.” Further, the IJ found that a visa petition is a petition for a visa
number which, once used, is no longer available. Because the IJ found that
Mireya had used her visa number in 1962, she was not entitled to reuse a visa
number based on a second priority date.
      Finally, the IJ concluded that, even if Mireya had two priority dates—the
date of her parents’ marriage and her date of birth—she was no longer a child
as defined by the INA, and, accordingly, she could not use her date of birth as a
priority date in any event. Therefore, the IJ was “not persuaded that [the
Chapas were] entitled to use a priority date from a 1962 visa petition that was
already granted.” The IJ found the Chapas removable and denied their
applications.
      The BIA’s Decision

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      The Chapas appealed the IJ’s written and oral decisions to the BIA and
the BIA dismissed the appeal in an unpublished, single judge decision. The BIA
found that the factual findings of the IJ were not clearly erroneous and,
exercising de novo review, the BIA adopted the IJ’s “thorough and well-reasoned
decisions.” The BIA noted that the Chapas argued on appeal that Mireya did not
need a visa and therefore did not use her priority date when she entered as a
child but agreed with the IJ that Mireya entered initially in 1962 on the basis
of her parents’ visa and was not subject to the 1965 quota. The BIA further
agreed with the IJ’s conclusion that the Chapas presented no authority for the
claim that Mireya possessed two priority dates, only one of which she claimed
that she had used. Finally, as the IJ found, the BIA noted that the priority date
for the visa petition filed by Mireya’s brother was not current.         The BIA
therefore agreed with the IJ’s conclusion that the Chapas were ineligible for
adjustment of status because a visa petition was not immediately available.
      The Chapas filed a timely petition for review and now argue that the
“Chapa family’s priority date is February 26, 1956”—the date of Mireya’s
parents’ marriage. Mireya no longer argues that she is eligible for a priority
date based on her date of birth.
                          STANDARD OF REVIEW
      This court generally only has authority to review the decision of the BIA.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). However, when the IJ’s
ruling affects the BIA’s decision, this court also reviews the decision of the IJ.
Id. Here, the BIA expressly adopted and affirmed “the Immigration Judge’s
thorough and well-reasoned decisions,” so this court reviews the IJ’s decision
regarding Mireya’s eligibility for an earlier priority date.
      The agency’s factual findings are reviewed for substantial evidence and
factual findings are only reversed if the evidence compels a contrary conclusion.



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Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). Questions of law
are reviewed de novo. Id.
                                 DISCUSSION
      Mireya’s only contention regarding the IJ’s and BIA’s decisions is that both
rulings are incorrect insofar as each held that she is not entitled to a WHPD
based on her parents’ date of marriage under the 1976 savings clause. If Mireya
is eligible to claim her parents’ 1956 date of marriage as a WHPD, she and her
family would become immediately eligible for an adjustment to LPR status. If
not, they must return to Mexico until their 2001 priority date becomes eligible
for an adjustment of status.
      The text of the 1976 savings clause states:
      (b) An alien chargeable to the numerical limitation contained in
      section 21(e) of the Act of October 3, 1965 (79 Stat. 921), who
      established a priority date at a consular office on the basis of
      entitlement to immigrant status under statutory or regulatory
      provisions in existence on the day before the effective date of this
      Act shall be deemed to be entitled to immigrant status under section
      203(a) (8) of the Immigration and Nationality Act and shall be
      accorded the priority date previously established by him.
Immigration and Nationality Act Amendments of 1976, Pub. L. No. 94-571 §
9(b), 90 Stat. 2703 (Oct. 20, 1976). The 1965 Act referenced in the savings clause
refers to the quotas imposed on family-based immigration from Western
Hemisphere countries, such as Mexico. The quotas took effect on July 1, 1968
and were initially set at 120,000. Pub L. No. 89-236, 79 Stat. 911 § 21(e) (Oct.
3, 1965).
      Interpreting the savings clause and its potential applicability to Mireya’s
application for adjustment of status, the IJ considered both the historical and
statutory context within which the savings clause was enacted, as well as the
plain meaning of the language of the clause. Summarizing the IJ’s discussion,
Mexican immigrants were not subject to quotas prior to 1965. After the 1965 Act


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mentioned in the savings clause, Mexican immigrants were subject to quotas
beginning in 1968. Due to issues implementing the quotas and allocating visa
petition priority dates for immigrants from Western hemisphere countries,
Congress modified the system for assigning priority dates in 1976, including
enacting the 1976 savings clause, to ensure that immigrants who were already
“in line” when the quota system was put in place would maintain their spot in
line.
        To maintain their spot in line, the savings clause allowed then-pending
applicants—termed registrants—to use their old, but unused priority dates. It
also allowed any derivative beneficiaries in existence on the date of original
registration with immigration officials to use the unused priority dates for later
applications. Derivative beneficiaries include spouses and unmarried children
under 21 on the date of original filing, as well as children born later from a
marriage that existed on that date. This means that children born after the
passage of the savings clause in 1976 can still qualify as derivatives if their
parents were married and had applied for a visa prior to the quotas going into
effect. The savings clause in the 1976 legislation allows the beneficiaries and
derivatives to use the original date of filing (registering) for later I-130
applications.
        Based on this historical review, the IJ considered the language of the
savings clause and interpreted the plain language to include two requirements
for aliens claiming eligibility for a WHPD under the savings clause: (1) the alien
must have been subject to the quotas established in the 1965 Act, based on the
“chargeable to the numerical limitation” language in the clause, and (2) the alien
must have established a priority date at a consular office prior to the effect date
of the Act based on the “who established a priority date at a consular office”
language.



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      Based on a plain reading of the language in the savings clause, we agree
with this interpretation. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979)
(“[T]he starting point in every case involving construction of a statute is the
language itself.”) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723, 756 (1975) (Powell, J., concurring)). Thus, when applying this plain
meaning interpretation to Mireya’s factual scenario, she is unable to take
advantage of a WHPD based on her parents’ marriage date. When Mireya
entered the country in 1962 as a LPR with her parents, she was in no way
‘subject to’ the 1965 quota. By the time the quota went into effect in 1968,
Mireya had long since gained permanent residence in the United States.
Considering that Mireya obtained a green card sometime shortly after her entry
in 1962, and did not surrender it until 1975, it would be illogical to also say she
was “waiting in line” for something she already possessed when the quotas went
into effect in 1968. Therefore, based on a plain meaning, the savings clause does
not apply to Mireya’s application.
      Mireya’s argument that she was actually living in Mexico since 1967, and
therefore was subject to the 1968 quotas, fails in light of the record evidence.
The I-275 form filed by immigration officials detailing when Mireya surrendered
her green card is clearly dated several times as “12-17-75” and thus is conclusive
that Mireya possessed a green card at the time the quotas went into effect in
1968. Not only was Mireya not subject to the 1965 quota, she was also not
“waiting in line” for a visa as an alien who had registered for a visa but had not
yet entered the United States as envisioned by the legislature when the savings
clause was enacted.
      Alternatively, Mireya argues that her entry into the United States in 1962
did not use the 1956 priority date she now claims because her immigration form
indicated that she was “admitted without visa in accordance with OI 211.” She
claims that despite raising this contention before the IJ and BIA, both ignored

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this argument and failed to cite any authority to refute her claim that the
“admitted without visa language” is equivalent to not having used her parents’
priority date. However, even if we were to assume Mireya had a valid claim to
her parents’ marriage date as a valid WHPD under the 1976 savings clause, we
would still have to deny the Chapas’ petition.
      While the language stamped on Mireya’s entry document does indeed say,
in part, “admitted without visa,” that language is only a portion of the notation
we must consider. That language is modified by “in accordance with OI 211.” A
review of the complete language of then-applicable OI 211 lends validity to the
IJ’s finding that Mireya received LPR status based on her parents’ “application”
or “petition” in 1962 and therefore she has already used the visa priority date
based on her parents’ marriage.
      The applicable subsection of OI 211 explains that “a child born subsequent
to the issuance of an immigrant visa to his accompanying parent and applies for
admission during the validity of such a visa” is exempted from having to present
a valid unexpired immigrant visa. OI § 211.1(a) (emphasis added).           This
language, in light of the notation on Mireya’s immigration form, makes clear
that while she was admitted and granted LPR status without her own valid
unexpired immigrant visa, she was only admitted based upon the “validity of
such a visa,” which is a direct reference to the validity of her parents’ visa
petition. Stated differently, Mireya was admitted and granted LPR status in
1962 based on her parents’ valid 1956 visa petition—the same one she attempts
to use now for a second admission to the United States. Therefore, a plain
reading of OI 211 in conjunction with the facts of Mireya’s 1962 entry into the
United States would foreclose Mireya’s use of her parents’ visa priority date a
second time. See In re Villarreal-Zuniga, 23 I. & N. Dec. 886, 889 (BIA 2006)
(“[O]nce an approved visa petition is used to obtain a benefit, it cannot be used
again.”).

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                              CONCLUSION
      For the foregoing reasons, we DENY the Chapas’ petition and AFFIRM the
decision of the BIA.




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