          United States Court of Appeals
                       For the First Circuit


No. 12-1133

                            JIN QING WU,

                            Petitioner,

                                 v.

      ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                            Respondent.


              PETITION FOR REVIEW FROM AN ORDER OF THE
                    BOARD OF IMMIGRATION APPEALS


                               Before

                  Torruella, Howard and Thompson,
                          Circuit Judges.


     Brian Shamus O'Donniley and Schiller Law Group PC on brief for
petitioner.
     Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, David V. Bernal, Assistant Director, and Jesse M. Bless,
Trial Attorney, Office of Immigration Litigation, Civil Division,
on brief for respondent.



                          January 2, 2013
           HOWARD, Circuit Judge. Jin Qing Wu, a native and citizen

of the People's Republic of China, petitions for review of the

Board of Immigrations Appeals’ (BIA) dismissal of his application

for adjustment of status.    The petition is denied.

                            I.   Background

           The United States permits an eligible noncitizen who is

not a lawful permanent resident to apply to adjust his status to

that of lawful permanent resident.      De Acosta v. Holder, 556 F.3d

16, 18 (1st Cir. 2009). While aliens who enter the country without

inspection are generally not eligible for such adjustment, 8 U.S.C.

§ 1255(a), (c), an alien may be "grandfathered" and thus eligible

if, as relevant here, a labor certification application was filed

on the alien's behalf by the grandfather date of April 30, 2001.

Id.; 8 U.S.C. § 1255(i).

           Wu entered the United States without inspection on May 5,

1999.   In April 2007, he married Bijao Chen, a United States

citizen.   Soon after, he began the process for adjustment of his

immigration status.    In May 2007, Ms. Chen filed an immediate

relative petition on her new husband’s behalf, and Wu filed an

application for adjustment of status.     Because Wu had entered the

United States without inspection, his marriage could support a

change in status only if, as relevant here, he was already the

beneficiary of an application for labor certification that was




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filed on or before April 30, 2001.            See 8 U.S.C. § 1255(i).     Thus,

the outcome of this appeal turns on events that occurred in 2001.

           On    April   16,    2001,    Wu's   employer   in   Fort   Collins,

Colorado, Lin Bo, submitted an application for labor certification

on Wu's behalf to the Colorado Department of Labor and Employment

("CDL"). The CDL returned the application to Bo on April 24, 2001,

with instructions to make corrections and additions within forty-

five days.      The CDL warned that failure to timely respond would

result in recission of the April 16, 2001 priority date, such that

future submissions would be treated as newly filed applications.1

Bo   responded to the CDL on May 11, 2001.           The CDL again wrote to

Bo on May 30, 2001.        Although that letter is not part of the

record, it is referenced in a subsequent letter that Bo sent to the

CDL on June 20, 2001, in which he stated that he was complying with

instructions contained in the CDL's May 30 correspondence.                 The

application itself is stamped as "received" by the CDL on "July 5,

2001."

                          II.    Prior Proceedings

           The Citizenship and Immigration Service ("CIS") rejected

Wu's application for status adjustment in October 2007.                The CIS

observed that, although the original priority date for his labor



     1
       A "priority date" is used by the United States Citizenship
and Immigration Service to establish the order in which an alien
will be able to obtain a visa or to adjust status. De Acosta, 556
F.3d at 17 n.2.

                                        -3-
certification application was April 16, 2001, the CDL changed it to

July 5, 2001. Therefore, the CIS concluded that no application had

been properly filed on or before April 30, 2001.

            In November 2007, the Bureau of Immigration and Customs

Enforcement initiated removal proceedings against Wu as an alien

who   entered   the    United   States      without     inspection.         See   id.

§   1182(a)(6)(A)(i).         Although      he    conceded      removability,     Wu

indicated   that      he   intended    to   use   the   proceeding     to    obtain

adjustment of his immigration status.             See 8 U.S.C. § 1229a(c)(4).

            The matter went before an Immigration Judge ("IJ"), who,

after granting several continuances to allow Wu to secure counsel,

and then for counsel to marshal evidence, denied Wu's application.

The IJ, essentially relying on the stamped date of July 5, 2001,

concluded that Wu failed to meet his burden of showing that the

application was filed on or before April 30, 2001.

            Wu appealed to the BIA.          He asserted that the IJ erred by

relying on the stamped date rather than the original April 16

submission date and therefore in not adjusting his status. Wu also

alleged that the IJ denied him due process by failing to consider

a brief that he submitted.            With respect to the filing date, Wu

argued   that   the    July   5,   2001,     stamped     date    was   due   to   an

"unfortunate administrative error" and that the application should

have been stamped April 16, 2001 by the CDL.                    Alternatively, he

argued that the IJ could have changed the date nunc pro tunc.


                                       -4-
              The BIA dismissed the appeal, finding no clear error in

the IJ's determination that the application for labor certification

was not properly filed before April 30, 2001, as the statute

requires.       See 8 U.S.C. § 1255(i)(1)(B)(ii).             As part of that

finding the BIA concluded that there was no error in relying on the

stamped receipt date; consequently it did not address the nunc pro

tunc dating request.         Finally, the BIA rejected Wu's due process

claim       because   he   failed   to    demonstrate      what     evidence   was

overlooked, or how he was prejudiced. This timely appeal followed.

                             III.   Legal Analysis

              Wu makes three arguments on appeal.            First, he claims

that the IJ erred by "failing to provide the petitioner with any

opportunity to supplement the record with testimony."                  Second, he

argues that the IJ incorrectly reasoned that he had no authority to

change the stamped receipt date of Wu's application and failed to

consider whether testimony could have provided evidence to support

such a change.        Finally, Wu argues that he was denied effective

assistance of counsel because he was not advised that he could

testify or that he had waived his right to do so.

              Initially,    we   note     that   neither     Wu's     ineffective

assistance of counsel claim nor his argument that he was not

permitted to testify were raised before the BIA.2                   Thus, we are


        2
       To the extent he claimed before the BIA that he had been
denied due process in the immigration court proceedings, Wu did so
only with respect to the alleged failure of the IJ to review a

                                         -5-
without jurisdiction to review them.    8 U.S.C. § 1252(d)(1); see

Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008) (noting that

claims not presented to the BIA are not reviewable). Moreover, the

BIA has explicit procedures for asserting an ineffective assistance

of counsel claim, and Wu does not suggest that he has followed

those procedures.   See Alsamhouri v. Gonzalez, 484 F.3d 117, 124

n.8 (1st Cir. 2007) (citing In re Lozada, 19 I. & N. Dec. 637, 639

(BIA 1988)).

          Turning to the merits of the dispute over the application

for a labor certification,3 we typically review the decision of the

BIA, not that of the IJ, except to the extent that the BIA deferred

to or adopted the IJ's reasoning.   Hasan v. Holder, 673 F.3d 26, 33

(1st Cir. 2012).    We will affirm the decision on adjustment of

status if the decision is "supported by reasonable substantial and

probative evidence on the record considered as a whole." De Acosta

v. Holder, 556 F.3d 16, 18 (1st Cir. 2009).

          Wu had the burden of proving that the application for

labor certification submitted on his behalf "was properly filed .


brief and exhibits filed prior to his hearing. This claim has been
abandoned on appeal. There is no mention either in his notice of
appeal or brief to the BIA of a claim based on the denial of the
right to testify.
     3
       Wu's appellate brief focuses on his unexhausted claims of
procedural infirmities, over which, as stated above, we have no
jurisdiction. His brief barely mentions why the BIA's substantive
decision with respect to the July 5, 2001 receipt date was wrong.
That issue, therefore, is probably not properly before us either.
In an abundance of caution, however, we give it our full attention.

                                -6-
. . on or before April 30, 2001, and . . . was approvable when

filed."   8 U.S.C. § 1255(i)(1)(B)(ii); 8 U.S.C. § 1229a(c)(4); De

Acosta, 556 F.3d at 18. While, as the IJ noted, the back-and-forth

between the CDL and Wu's employer rendered the history somewhat

murky, the chain of communication regarding the CDL's multiple

remands of the application to Wu's employer and the date-stamp of

July 5, 2001 are sufficient evidentiary support for the BIA's

conclusion that the application was not "properly filed" and

"approvable" by April 30, 2001.             As the BIA observed, under the

regulations in effect at the relevant time, an application was

"deemed validated" as of the date that the CDL stamped it received.

See 20    C.F.R.   §   656.30(b)(1)    (2001).      Similarly,   the   record

supports the BIA's determination that Wu failed to demonstrate that

the CDL date-stamp was a clerical mistake.          Both the initial April

filing and the employer's response to the CDL's notice contained

deficiencies that necessitated correction.           As the BIA noted, the

July 5 date-stamp could support the conclusion that the CDL did not

consider the deficiencies identified in its April and May letters

to the employer to have been rectified.

           The petition is denied.




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