     05-3270-ag
     Butt v. Gonzales

 1                            UNITED STATES COURT OF APPEALS
 2
 3                                FOR THE SECOND CIRCUIT
 4
 5                                        -------------
 6
 7                                      August Term 2006
 8
 9   Submitted: May 8, 2007             Decided: August 23, 2007
10   Last supplemental brief filed: July 30, 2007
11
12                                    Docket No. 05-3270-ag
13
14   --------------------------------------------------X
15
16   MUHAMMAD BUTT,
17
18                                Petitioner,
19
20                      - against -
21
22   ALBERTO GONZALES, United States Attorney General,
23
24                                Respondent.
25
26   --------------------------------------------------X
27
28           Before:         FEINBERG, CALABRESI, and WESLEY, Circuit Judges.
29
30        Petitioner, who intends to seek adjustment of status if and
31   when an employment-based immigrant visa becomes available to him,
32   seeks review of a decision of the Board of Immigration Appeals
33   affirming a decision of the Immigration Judge denying
34   petitioner’s request for a continuance while his employer’s
35   application for a labor certification was pending. We grant the
36   petition, vacate the BIA’s decision, and remand the case for the
37   BIA to consider antecedent questions regarding petitioner’s
38   eligibility for adjustment of status.
39
40                           LARISA TENBERG (Christina L. Harding, on the
41                                brief), Gallagher, Malloy & Georges, P.C.,
42                                Philadelphia, PA, for Petitioner.
43
44                           LAURA MCMULLEN FORD, Special Assistant United
45                                States Attorney, (Gregory A. White, United
46                                States Attorney, on the brief), United
 1                               States Attorney’s Office for the Northern
 2                               District of Ohio, for Respondent.
 3
 4   FEINBERG, Circuit Judge:

 5        Petitioner Muhammad Butt, who intends to seek adjustment of

 6   status if and when an employment-based immigrant visa becomes

 7   available to him, seeks review of a June 9, 2005, decision of the

 8   Board of Immigration Appeals (“BIA”) affirming a January 9, 2004,

 9   decision       of    the    Immigration     Judge    (“IJ”)       denying    Butt’s

10   application for a continuance of his removal proceeding and

11   ordering him removed.             Butt argues that the IJ abused her

12   discretion      in     denying   the   continuance        while   his    employer’s

13   application for a labor certification, which must be approved

14   before Butt may seek an employment-based immigrant visa, was

15   pending.      But before reaching that issue, we remand the case to

16   the BIA to consider, in the first instance, antecedent questions

17   regarding      Butt’s      eligibility    for    adjustment       of   status,   the

18   answers to which may bear on any subsequent consideration of

19   whether the IJ abused her discretion in denying the continuance.

20                                    I. BACKGROUND

21        Butt, a native and citizen of Pakistan, entered the United

22   States       without    inspection     in      February    2000,1      and   shortly


              1
             As discussed below, the Government contends in its
      supplemental brief that Butt may not have been physically
      present in the U.S. on December 21, 2000. It is unclear whether
      the Government is thus contending that Butt may not have entered
      in February 2000.    But the Government has conceded that any

                                              -2-
 1   thereafter sought to adjust his status to that of a lawful

 2   permanent resident under 8 U.S.C. § 1255.          As set forth in more

 3   detail below, because Butt entered without inspection, he may

 4   apply for adjustment of status only if he is “grandfathered” as

 5   the   beneficiary    of    either    a     timely-filed    petition     for

 6   classification under section 204 of the Immigration & Nationality

 7   Act   (“INA”)   or   a    timely-filed      application    for    a    labor

 8   certification    under     section        212(a)(5)(A)    of     the   INA.

 9   Furthermore, he must establish that he was physically present

10   here on December 21, 2000.      8 U.S.C. § 1255(i)(1)(C).         Then, if

11   grandfathered, he may apply for adjustment of status under id. §

12   1255(i)(2).

13         Butt first sought grandfathering and adjustment of status on

14   the basis of a section 204 petition for classification filed by

15   his wife.     He married a U.S. citizen on April 6, 2001, and,

16   shortly thereafter, his wife filed a form I-130 petition to

17   classify Butt as an alien relative, and he filed a form I-485

18   application to adjust status on the ground that his wife had

19   filed the form I-130.      Both the I-130 and the I-485 were denied




      inconsistency is likely a typographical error, and its
      responsive brief stated that Butt entered the country in
      February 2000, as does the Notice to Appear sent to Butt. In
      any event, except as discussed in Section II.A.1, infra, Butt’s
      date of entry is not relevant to the disposition of this appeal.

                                         -3-
 1   on May 30, 2003, apparently because Butt was a “no show” and thus

 2   defaulted.     Joint Appendix 58, 61.

 3          The Immigration and Naturalization Service commenced removal

 4   proceedings in July 2003.               After Butt failed to appear for a

 5   hearing, the IJ ordered him removed to Pakistan.                         Subsequently,

 6   Butt moved to reopen the removal proceedings, and the IJ granted

 7   the motion.     Butt then advised the IJ that he intended to seek

 8   adjustment     of     status       on   the   basis      of    an   employment-based

 9   immigrant visa, and that the prerequisite application for a labor

10   certification, filed by Butt’s employer on or about December 30,

11   2003   and   accepted        for    processing      on    January     7,    2004,   was

12   pending.2      He     then    requested       a   continuance       of    his   removal

13   proceedings while the application was pending. The IJ denied the

14   request     because    “the    fact      that     there   is    a   [pending]     labor

15   certification isn’t grounds for an adjournment, particularly

16   considering how long labor certifications take and there’s no

17   guarantee that they’ll be approved.”                  Because Butt did not apply


             2
             The process through which an alien pursues employment-
      based adjustment of status is as follows: First, the alien’s
      prospective employer must file an application for a labor
      certification.    If the Department of Labor certifies the
      application, the alien’s prospective employer must then file a
      Form I-140, Immigrant Petition for Alien Worker, accompanied by
      the Labor Certification.    If the Petition is approved, the
      alien, who must be residing in the U.S., must file a Form I-485
      Application to Register Permanent Residence or Adjust Status.
      See Lendo v. Gonzales, No. 05-1715, -- F.3d --, 2007 WL 1982038
      at *2 (4th Cir. July 10, 2007).

                                               -4-
 1   for and was ineligible for any other form of relief, the IJ found

 2   him removable and ordered him removed to Pakistan.           As already

 3   noted, the BIA affirmed without opinion in June 2005. Butt filed

 4   a timely petition for review of that decision.3

 5                                II.   ANALYSIS

 6        Before us, the parties have principally argued whether it

 7   was an abuse of discretion for the IJ to deny a continuance while

 8   the application for a labor certification was pending.           But we

 9   decline to consider that question at this time and instead remand

10   the case to the BIA to consider antecedent questions regarding

11   Butt’s eligibility for adjustment of status, the answers to which

12   may bear on any subsequent consideration of whether the IJ abused

13   her discretion in denying the continuance.

14        As noted above, because Butt entered without inspection, he

15   may apply for adjustment of status only if he is “grandfathered”

16   under 8 U.S.C. § 1255(i)(1).          Id. § 1255(i)(1)(A)(i).     To be

17   grandfathered, the alien must be the beneficiary of either a

18   petition for classification under section 204 of the INA, id. §

19   1154, filed on or before April 30, 2001, id. § 1255(i)(1)(B), or

20   an   application   for   a    labor      certification   under   section



           3
             After this matter was fully briefed before us, the
      Department of Labor granted Butt’s labor certification on
      October 10, 2006. Butt’s prospective employer then filed the I-
      140 petition on October 31, 2006. The record is unclear as to
      whether Butt thereafter filed an I-485 application.

                                        -5-
 1   212(a)(5)(A) of the INA, id. § 1182(a)(5)(A), filed on or before

 2   April 30, 2001, id. § 1255(i)(1)(B).           In addition, if the

 3   petition or application was filed after January 14, 1998, the

 4   alien must have been physically present in the U.S. on December

 5   21, 2000.     Id. § 1255(i)(1)(C).     Then, once grandfathered, the

 6   alien may apply for adjustment of status, which the Attorney

 7   General may grant if the alien pays a “fine” filing fee of

 8   $1,000, id. § 1255(i)(1), and “(A) the alien is eligible to

 9   receive an immigrant visa and is admissible to the United States

10   for permanent residence; and (B) an immigrant visa is immediately

11   available to the alien at the time the application is filed,” id.

12   § 1255(i)(2).

13        We remand to the BIA to consider (A) Whether Butt is

14   grandfathered, viz. (1) whether Butt was physically present in

15   the United States on December 21, 2000, and (2) whether the

16   section 204 petition for classification benefitting Butt was

17   “approvable     when   filed,”   as    required   by   8   C.F.R.   §

18   245.10(a)(1)(i)(A) and (B) if Butt is in fact grandfathered on

19   the basis of the section 204 petition for classification, whether

20   he may then seek adjustment of status under 8 U.S.C. § 1255(i) on

21   the basis of an employment-based immigrant visa?4


           4
             By order dated July 11, 2007, we directed the parties to
      provide supplemental briefing addressing whether we should
      remand the case to the BIA to address (A)(2) and (B). The last
      of these briefs was filed on July 30, 2007.

                                      -6-
 1        Simply put, if Butt is not grandfathered or if he may not

 2   apply for adjustment of status on a basis other than an approved

 3   section 204 petition for classification, he is ineligible for

 4   adjustment of status. Accordingly, we grant the petition, vacate

 5   the BIA’s decision, and remand the case to the BIA to consider

 6   these questions in the first instance.
 7
 8        A.    Whether Butt is “grandfathered” under 8 U.S.C. §
 9              1255(i)(1)?
10
11              1.     Was Butt physically present in the United
12                     States on December 21, 2000?
13
14        First, we remand the case to the BIA for a finding on

15   whether Butt was physically present in the U.S. on December 21,

16   2000.     Because the section 204 petition for classification

17   benefitting     Butt   was   filed   after    January   14,   1998,   to    be

18   grandfathered, Butt must show that he was physically present in

19   the U.S. on December 21, 2000.             8 U.S.C. § 1255(i)(1)(C).        8

20   C.F.R. § 245.10(n) clarifies that the alien bears the burden of

21   proof on this question and specifies particular types of evidence

22   that will satisfy it.

23        In its supplemental brief, the Government argues that Butt

24   has not met his burden because there is no evidence in the

25   record, of the sort sanctioned by 8 C.F.R. § 245.10(n), that

26   establishes his physical presence in the U.S. on December 21,

27   2000.     Furthermore,       while   the     section    204   petition     for

28   classification and corresponding adjustment of status application


                                          -7-
 1   claim that Butt entered the U.S. on February 14, 2000, and the I-

 2   862 Notice to Appear states that he entered the U.S. on or about

 3   February 28, 2000, the I-140 employment-based visa petition filed

 4   by Butt’s employer states that he entered on April 6, 2001

 5   (though the Government concedes that this date, which is the date

 6   on which Butt married his wife, is probably a typographical

 7   error, see Gov’t Supp. Ltr. Br., dated July 18, 2007, at 3-4).

 8   Butt    does    not        address   this    argument       in     his   supplemental

 9   submission.

10          If Butt was not physically present on December 21, 2000, he

11   is not grandfathered, and if he is not grandfathered, he is

12   ineligible for adjustment of status.                    Because the agency has not

13   made a finding on this question, we remand the case to the BIA to

14   do so (and to remand to the IJ if necessary).

15                  2.     Was   Butt’s   section  204   petition                  for
16                         classification “approvable when filed”?
17
18          Second, we remand the case to the BIA to determine whether

19   the section 204 petition for classification benefitting Butt was

20   “approvable         when    filed”   within       the    meaning    of   8   C.F.R.   §

21   245.10(a)(1)(i)(A).

22          As noted, to apply for adjustment of status as an alien who

23   entered the U.S. without inspection, Butt must be “grandfathered”

24   under 8 U.S.C § 1255(i)(1).            Butt is the beneficiary of a section

25   204 petition for classification filed on or before April 30,



                                                 -8-
 1   2001,5 and, we assume, for purposes of this discussion, that he

 2   was physically present in the U.S. on December 21, 2000.                      He

 3   therefore satisfies the express statutory requirement set forth

 4   in 8 U.S.C. § 1255(i)(1).

 5           But   the     implementing     regulations     impose       additional

 6   requirements, including that the petition or application be

 7   “approvable when filed”:

 8           Grandfathered alien means an alien who is                      the
 9           beneficiary ... of:
10                (A) A petition for classification under section           204
11                of the Act which was properly filed with                  the
12                Attorney General on or before April 30, 2001,             and
13                which was approvable when filed
14
15   8    C.F.R.   §    245.10(a)(1)(i)    (emphasis    added);    see    also    id.

16   245.10(i).        “Approvable when filed” is defined as follows:

17           [A]s of the date of the filing of the qualifying
18           immigrant visa petition under section 204 of the Act or
19           qualifying application for labor certification, the
20           qualifying petition or application was properly filed,
21           meritorious in fact, and non-frivolous (“frivolous”
22           being defined herein as patently without substance).
23           This determination will be made based on the
24           circumstances that existed at the time the qualifying
25           petition or application was filed.
26
27   8 C.F.R. § 245.10(a)(3) (emphasis added).

28           The   parties   did   not    initially    address    whether   Butt’s

29   petition was “approvable when filed.”              Accordingly, as noted

30   above, we solicited their views as to whether we should remand

              5
                Because Butt’s application for a labor certification was
         not filed until December 2003, after the April 30, 2001,
         deadline imposed by 8 U.S.C. § 1255(i)(1)(B), he is not eligible
         for grandfathering on that basis.

                                           -9-
 1   the case to the BIA to consider, in the first instance, whether

 2   Butt has satisfied this requirement.   In response, Butt, citing

 3   a U.S. Citizenship and Immigration Services (“USCIS”) Interoffice

 4   Memorandum, dated March 9, 2005 (“USCIS Memorandum”), argued that

 5   an application is to be deemed “approvable when filed” absent

 6   evidence of fraud, and there is no such evidence in the record.6

 7   The Government, on the other hand, argues that an application is

 8   only “approvable when filed” if it is actually meritorious, and

 9   because Butt defaulted on his application, and did not appeal

10   that determination, it is impossible to determine whether it was

11   “approvable when filed.”7


           6
             Specifically, Butt, while arguing in passing that his
      application was “meritorious and non-frivolous” and that he
      submitted “clear and convincing” evidence showing that the
      marriage was bona fide, principally relies on the USCIS
      Memorandum, which states that “[a]bsent evidence of fraud, when
      a qualifying application for labor certification . . . is
      properly filed and accepted by the United States Department of
      Labor in accordance with 20 CFR 656.21, USCIS will consider the
      requirements of 8 CFR 245.10 related to ‘properly filed’ and
      ‘approvable when filed’ to have been met for grandfathering
      purposes under section 245(i).” Because there is no evidence of
      fraud, Butt argues, his application was “approvable when filed.”
           7
             The Government notes that because Butt defaulted and did
      not appeal, there was no determination concerning the merit of
      his petition. Furthermore, neither Butt nor his wife submitted
      an affidavit of marriage or other documentation suggesting the
      marriage was bona fide.    The Government argues further that
      Butt’s reliance on the USCIS Memorandum is misplaced for two
      reasons. First, the Memorandum states that it “is intended
      solely for the training and guidance of USCIS personnel in
      performing their duties relative to the adjudication of
      applications for adjustment of status. . . . [and] is not
      intended to, does not, and may not be relied upon to create any
      right or benefit, substantive or procedural, enforceable at law

                                   -10-
 1        We decline to resolve this disagreement without the benefit

 2   of the BIA’s views.   The meaning of “approvable when filed” is

 3   ambiguous, especially as applied to the facts here presented.8

 4   For example, an application may be “approvable when filed” if, as

 5   the Government urges, it is meritorious and therefore should be

 6   granted based on the facts existing at the time of filing.   Under

 7   the regulations, an application is “approvable when filed” if it

 8   is “meritorious in fact,” which is perhaps most naturally read as

 9   requiring that, based on the facts as they exist at the time of

10   filing, the application should be granted.    See supra page 9,

11   quoting 8 C.F.R. § 245.10(a)(3); see also, e.g., Lasprilla v.

12   Ashcroft, 365 F.3d 98, 100-01 (1st Cir. 2004) (holding that

13   application was not “approvable when filed” because petitioner

14   “had two opportunities -- in his motion to reopen and in his

15   motion to reconsider -- to present a sufficient showing that he

16   was within the exception and thus that the visa application was

17   ‘approvable when filed,’” and failed to do so).   But it may also

18   be the case that an application is “approvable when filed” if, as



      . . . by any individual or other party in removal proceedings,
      in litigation with the United States, or in any other form or
      manner.”   Second, the section on which Butt relies concerns
      applications for labor certification, not petitions for
      classification.
           8
             The Government, in its supplemental submission, concedes
      that “the record is unclear whether the spousal visa petition
      filed on Butt’s behalf was approvable when filed.” Gov’t Supp.
      Ltr. Br., dated July 18, 2007, at 1.

                                   -11-
 1   Butt urges, there is no evidence of fraud, if the application

 2   states a prima facie case for eligibility, or something else

 3   altogether.         Indeed, the regulations require, in the very same

 4   sentence requiring that the application be “meritorious in fact,”

 5   that    it    be     “non-frivolous,”            which    would    be    a     redundant

 6   requirement        if    the    application        must   be   meritorious       as   the

 7   Government defines that term.               See supra page 9, quoting 8 C.F.R.

 8   § 245.10(a)(3).

 9          Furthermore, in light of whatever definition of “approvable

10   when filed” the BIA adopts, was Butt’s application, which was

11   denied when Butt failed to appear, “approvable when filed”? That

12   is, when a petitioner defaults on his application, as Butt did,

13   and does not appeal that determination, how are we to determine

14   whether the application was “approvable when filed”?

15          Given these ambiguities concerning whether Butt’s petition

16   was “approvable when filed” -- a question that is potentially

17   dispositive of this petition -- we remand to give the BIA an

18   opportunity to express its views before we decide the petition.

19          B.     Whether Butt may seek adjustment of status on the
20                 basis of an employment-based immigrant visa when he
21                 was grandfathered on the basis of a section 204
22                 petition for classification?
23
24          Third, assuming that Butt is grandfathered, we also remand

25   the    case    to       the    BIA    to    determine      whether      Butt    may   be

26   grandfathered           on    the   basis   of     a   section    204   petition      for



                                                 -12-
 1   classification but then seek adjustment of status on the basis of

 2   an employment-based immigrant visa.

 3          Butt’s application for a labor certification was filed after

 4   April 30, 2001, so he must be grandfathered, if at all, on the

 5   basis of the section 204 petition for classification, which was

 6   filed before that date.           But the section 204 petition for

 7   classification was eventually denied, so his status cannot be

 8   adjusted on that basis.      Instead, he plans to seek adjustment of

 9   status on the basis of an employment-based immigrant visa, if and

10   when it is granted.      As a result, he would be grandfathered on

11   the basis of a section 204 petition for classification but then

12   seek adjustment of status on the basis of an employment-based

13   immigrant visa.

14          Does the INA so permit?       We also sought the parties’ views

15   on this question in our supplemental briefing order.                     In its

16   supplemental brief, the Government appears to concede that, if

17   Butt   is   grandfathered    as   the   beneficiary      of    a    section    204

18   petition    for    classification,      his    eligibility     to     apply    for

19   adjustment    of    status   on   some        other   basis,       including   an

20   employment-based immigrant visa, is preserved under 8 C.F.R. §

21   245.10(a)(3).9     Butt, of course, agrees.


             9
             However, the Government argues that the earliest an
      employment-based immigrant visa would be available to Butt is
      October 2007 (unless he applied in June 2007, when there was a
      brief window during which Butt’s “priority date” would have
      allowed him to apply), and he has no right to remain in the

                                        -13-
 1        Although the parties appear to be in agreement on the

 2   question of statutory interpretation -- i.e. that Butt may seek

 3   adjustment   of   status   on   the   basis   of   an   employment-based

 4   immigrant visa even though he was grandfathered on the basis of

 5   a section 204 petition for classification -- we think, without

 6   expressing any views whatsoever on the merits, that we would

 7   benefit from the BIA’s views on the issue.         8 C.F.R. § 245.10(i)

 8   provides that

 9        The denial, withdrawal, or revocation of the approval of
10        a qualifying immigrant visa petition, or application for
11        labor certification, that was properly filed on or
12        before April 30, 2001, and that was approvable when
13        filed, will not preclude its grandfathered alien
14        (including the grandfathered alien’s family members)
15        from seeking adjustment of status under section 245(i)
16        of the Act on the basis of another approved visa
17        petition, a diversity visa, or any other ground for
18        adjustment of status under the Act, as appropriate.
19
20   8 C.F.R. § 245.10(i) (emphasis supplied); see also 8 C.F.R. §

21   245.10(a)(3) (stating that to preserve grandfathered status, an

22   alien whose properly filed visa petition was denied must be

23   “otherwise eligible to file an application for adjustment of

24   status under section 245(i) of the [INA]”).             In our opinion,

25   these provisions do not unambiguously compel the interpretation


      country in the interim. See Hadayat v. Gonzales, 458 F.3d 659,
      662 (7th Cir. 2006) (observing that “[w]hat is grandfathered ...
      is the basic eligibility for adjustment [of status]; in all
      other respects the individual remains a ‘nonimmigrant’ -- that
      is, a person with no legal right to remain in the United States
      unless and until an immigrant visa becomes available”).       We
      decline to address this question until we have the benefit of
      the BIA’s views on the various questions set forth herein.

                                       -14-
 1   favored by the parties.          To be sure, there is nothing in the

 2   statutory or regulatory provisions in issue that explicitly

 3   requires that the immigrant visa on which basis the Attorney

 4   General adjusts an alien’s status be based on the application or

 5   petition through which the alien was grandfathered. Furthermore,

 6   the USCIS Memorandum, see supra pages 9-10 & nn.6-7, arguably

 7   supports, at page 2, the interpretation propounded by both

 8   parties, namely that Butt may seek adjustment of status on the

 9   basis of an employment-based immigrant visa even though he was

10   grandfathered     on   the    basis    of    a   section   204   petition   for

11   classification. But the statutory and regulatory provisions also

12   do not foreclose other interpretations, viz. that the alien must

13   be grandfathered and have his status adjusted on the same basis

14   or that an alien may be grandfathered and have his status

15   adjusted     on   different    bases    only     if   he   can   show   changed

16   circumstances, see 8 C.F.R. § 245.10(a)(3) (providing that “[a]

17   visa petition that was properly filed on or before April 30,

18   2001, and was approvable when filed, but was later withdrawn,

19   denied, or revoked due to circumstances that have arisen after

20   the   time   of   filing,     will    preserve    the   alien    beneficiary’s

21   grandfathered status if the alien is otherwise eligible to file

22   an application for adjustment of status under section 245(i) of

23   the Act” (emphasis added)).




                                           -15-
 1        We therefore remand the case to the BIA to consider, in the

 2   first instance, whether, if Butt is grandfathered on the basis of

 3   the section 204 petition for classification, his status may be

 4   adjusted on the basis of an employment-based immigrant visa.

 5

 6

 7                           III.   CONCLUSION

 8        Ambiguities such as these in a complex statutory scheme are

 9   best addressed, in the first instance, by the expert agency

10   charged with administering it.    See generally Chevron, U.S.A.,

11   Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45

12   (1984).   We therefore grant the petition for review, vacate the

13   BIA’s decision, and remand the case to the BIA to consider the

14   various issues discussed above.   This panel retains jurisdiction

15   to rule upon the instant petition and decide the issues on appeal

16   following the disposition of the remand.    See Ci Pan v. United

17   States Att’y Gen., 449 F.3d 408, 415 (2d Cir. 2006) (per curiam)

18   (citing United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.

19   1994).




                                    -16-
