12-10-ag
Lee v. Holder
                                                                                                       BIA
                                                                                               A088 266 340
                            UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                           August Term, 2012

(Submitted: October 22, 2012                                              Decided: December 3, 2012)

                                          Docket No. 12-10-ag


                _______________________________________________________________


                                             KAR ONN LEE,

                                                 Petitioner,


                                                     v.


                       ERIC H. HOLDER, Attorney General of the United States,

                                                Respondent.


                _______________________________________________________________



Before: LEVAL, CABRANES, and SACK, Circuit Judges.

          Petitioner Kar Onn Lee, a Malaysian citizen who has overstayed his nonimmigrant visa in

the United States, seeks an adjustment of immigration status. Generally, applicants such as Lee, who

are present in the United States unlawfully, are not eligible for a change of immigration status. See

8 U.S.C. § 1255(c). Lee, however, has invoked the so-called “grandfathering” exception for

beneficiaries of labor-certification applications filed by April 30, 2001. See id. § 1255(i)(1)(B)(ii). The

Attorney General has interpreted that provision as applying only to beneficiaries actually listed on

labor-certification applications as of April 30, 2001—not individuals who were later substituted as

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beneficiaries. See 8 C.F.R. § 245.10(j) (“An alien who was substituted for the previous beneficiary of

the application for the labor certification after April 30, 2001, will not be considered to be a

grandfathered alien.”); id. § 1245.10(j) (same). We hold that § 245.10(j) and § 1245.10(j), in which

the Attorney General sets forth this interpretation, are entitled to Chevron deference. Accordingly,

the Immigration Judge and Board of Immigration Appeals properly determined that Lee is ineligible

for a change of immigration status because he was not listed as a beneficiary on an application for

labor certification until after April 30, 2001.

              The petition for review is denied.

                                                               John L. Moncrief, New York, NY, for Petitioner.

                                                               Rebecca Hoffberg Phillips, Trial Attorney; William C.
                                                                     Peachey, Assistant Director, Office of Immigration
                                                                     Litigation; Stuart F. Delery, Acting Assistant Attorney
                                                                     General, Civil Division, United States Department of
                                                                     Justice, Washington, DC, for Respondent.

JOSÉ A. CABRANES, Circuit Judge:

              Petitioner Kar Onn Lee, a Malaysian citizen who has overstayed his nonimmigrant visa in

the United States, seeks an adjustment of immigration status. Generally, applicants such as Lee, who

are present in the United States unlawfully, are not eligible for a change of immigration status. See

8 U.S.C. § 1255(c).1 Lee, however, has invoked the so-called “grandfathering” exception for

beneficiaries of labor-certification applications filed by April 30, 2001. See id. § 1255(i)(1)(B)(ii).2

                                                            
1
     Section 1255(c) provides, in relevant part:
              [S]ubsection (a) of this section shall not be applicable to . . . an alien . . . who hereafter continues in or
              accepts unauthorized employment prior to filing an application for adjustment of status or who is in
              unlawful immigration status on the date of filing the application for adjustment of status or who has
              failed (other than through no fault of his own or for technical reasons) to maintain continuously a
              lawful status since entry into the United States.
8 U.S.C. § 1255(c).
2   Section 1255(i)(1)(B)(ii) provides, in relevant part:
              Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in
              the United States . . . who is the beneficiary . . . of . . . an application for a labor certification under

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The Attorney General has interpreted that provision as applying only to beneficiaries actually listed

on labor-certification applications as of April 30, 2001—not individuals who were later substituted

as beneficiaries. See 8 C.F.R. § 245.10(j) (“An alien who was substituted for the previous beneficiary

of the application for the labor certification after April 30, 2001, will not be considered to be a

grandfathered alien.”); id. § 1245.10(j) (same). We hold that § 245.10(j) and § 1245.10(j) are entitled

to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

(“Chevron”). Accordingly, the Immigration Judge and Board of Immigration Appeals properly

determined that Lee is ineligible for a change of immigration status because he was not listed as a

beneficiary on an application for labor certification until after April 30, 2001.

                                                                             BACKGROUND

              Kar Onn Lee entered the United States legally as a nonimmigrant visitor in 2000. In March

2007, Lee—assisted by counsel, as he has been throughout these proceedings—filed an application

with the United States Citizenship and Immigration Services (“USCIS”) for an adjustment of

immigration status, seeking permanent resident status. He updated that application after USCIS

approved in July 2007 an “Immigrant Petition for Alien Worker” filed by Penang Malaysian Cuisine

listing Lee as the beneficiary for a Malaysian chef position. Penang Malaysian Cuisine had originally

filed the application for labor certification in January 2001, listing Ji Fa Cao as the beneficiary. In

February 2007, the restaurant replaced Cao with Lee as the beneficiary for the chef position.

              USCIS denied Lee’s application for adjustment of status in August 2008, determining that he

was ineligible for permanent resident status on the basis of Penang Malaysian Cuisine’s labor



                                                                                                                                                                                               
                                                                                                                                                                                               
              section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor
              on or before [April 30, 2001] . . . may apply to the Attorney General for the adjustment of his or her
              status to that of an alien lawfully admitted for permanent residence.
8 U.S.C. § 1255(i)(1)(B)(ii).
 

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certification.3 Lee then filed a motion to reopen and reconsider, which the USCIS denied in

February 2009.

              In July 2009, the USCIS initiated removal proceedings because Lee had overstayed his visitor

visa. In proceedings before an Immigration Judge (“IJ”), Lee conceded his removability but

renewed his application for an adjustment of status. Lee argued that he was a “grandfathered” alien

within the meaning of 8 U.S.C. § 1255(i), see note 2, ante, because he was listed as the current

beneficiary of an application for labor certification filed prior to April 30, 2001. Federal law

provides that an immigrant who is unlawfully present in the United States may nonetheless qualify

for a change of immigration status as a so-called grandfathered alien if he “is the beneficiary . . . of

. . . an application for a labor certification . . . that was filed pursuant to the regulations of the

Secretary of Labor on or before [April 30, 2001].” 8 U.S.C. § 1255(i)(1)(B)(ii); see also Butt v. Gonzales,

500 F.3d 130, 132–33 (2d Cir. 2007) (describing the general structure of § 1255(i)). The government

opposed Lee’s adjustment, citing a regulation promulgated by the Attorney General stating that “[a]n

alien who was substituted for the previous beneficiary of the application for the labor certification

after April 30, 2001, will not be considered to be a grandfathered alien.” 8 C.F.R. § 245.10(j).

              In April 2010, the IJ issued an oral decision denying Lee’s adjustment application, but

granting him the opportunity to voluntarily depart pursuant to 8 U.S.C. § 1229c(a). Joint App’x 24–

30. The IJ concluded that Lee is not “grandfathered” because, under 8 C.F.R. § 245.10(j), he did not

become a beneficiary of the relevant application until after April 30, 2001. Id. at 29. The IJ

reasoned that Lee was therefore ineligible for a change of status under 8 U.S.C. § 1255(i)(1)(B)(ii).

Id.




                                                            
3 USCIS had originally denied Lee’s application in April 2008 based on his alleged failure to prove that he was present in

the United States in 2000. Following a motion to reconsider, USCIS issued a new opinion on August 7, 2008,
concluding that Lee was not a grandfathered beneficiary.

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        Lee appealed to the Board of Immigration Appeals (“BIA”), arguing that Congress intended

to include substituted beneficiaries in the class of aliens eligible for an adjustment of status under

§ 1255(i)(1)(B)(ii). The BIA rejected Lee’s arguments, stating that it was “bound by the

implementing regulations that correspond to the relevant portions of the statute.” Joint App’x 6–7.

        Lee then filed this petition for review pursuant to 8 U.S.C. § 1252(b). He asserts that the IJ

and BIA erred by affording Chevron deference to the Attorney General’s interpretation of the

grandfathering provision in § 1255(i)(1)(B)(ii). In particular, Lee argues: (1) that the Secretary of

Labor—not the Attorney General—is charged with interpreting the grandfathering provision;

(2) that the grandfathering provision unambiguously provides that Lee is a grandfathered

beneficiary; and (3) that the Attorney General’s interpretation of the grandfathering provision is

unreasonable.

                                             DISCUSSION

        Unlawful residence in the United States generally renders an immigrant ineligible for an

adjustment of status. See 8 U.S.C. § 1255(c), note 1, ante. Congress has created a limited exception,

however, for an alien who “is the beneficiary . . . of . . . an application for a labor certification under

section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor

on or before [April 30, 2001].” Id. § 1255(i)(1)(B)(ii); see also Suisa v. Holder, 609 F.3d 314, 315–16

(4th Cir. 2010) (providing a brief history of § 1255(i)).

        The question presented in this appeal is whether § 1255(i)(1)(B)(ii) applies when an alien was

substituted as a beneficiary after April 30, 2001, on an application for labor certification filed before

April 30, 2001. The Attorney General has already answered this question: “An alien who was

substituted for the previous beneficiary of [an] application for . . . labor certification after April 30,

2001, will not be considered to be a grandfathered alien.” 8 C.F.R. § 245.10(j) (emphasis supplied);

id. § 1245.10(j). Accordingly, if this interpretation warrants deference, we need proceed no further.


                                                     5
 
                                                    A.

        Prior to the creation of the Department of Homeland Security in 2002, the Supreme Court

held that federal courts are required to afford deference to the Attorney General’s interpretation of

the Immigration and Nationality Act (“INA”) using the familiar principles articulated in Chevron:

        It is clear that principles of Chevron deference are applicable to this statutory scheme.
        The INA provides that “[t]he Attorney General shall be charged with the
        administration and enforcement” of the statute and that the “determination and
        ruling by the Attorney General with respect to all questions of law shall be
        controlling.” 8 U.S.C. § 1103(a)(1) (1994 ed., Supp. III).

INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). In 2003, Congress amended § 1103(a)(1) to provide

that “[t]he Secretary of Homeland Security shall be charged with the administration and

enforcement of this chapter and all other laws relating to the immigration and naturalization of

aliens, . . . Provided, however, That determination and ruling by the Attorney General with respect to all

questions of law shall be controlling.” Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 1102(2), 116 Stat. 2135 (Nov. 25, 2002), as amended by Pub. L. No. 108-7, § 105(a)(1), 117 Stat. 11

(Feb. 20, 2003) (codified at 8 U.S.C. § 1103(a)(1)) (emphasis in original). The Supreme Court has

since reiterated that Chevron deference applies to the Attorney General’s interpretations of the INA.

See Negusie v. Holder, 555 U.S. 511, 516–17 (2009); cf. Lopez v. Davis, 531 U.S. 230, 243–44 (2001)

(“Even if a statutory scheme requires individualized determinations, . . . the decisionmaker has the

authority to rely on rulemaking to resolve certain issues of general applicability unless Congress

clearly expresses an intent to withhold that authority.” (quotation marks and alterations omitted)).

        Pursuant to his authority to enforce and interpret the INA, the Attorney General on March

20, 2001, promulgated an interim rule stating that “[a]n alien who was substituted for the previous

beneficiary of [an] application for . . . labor certification after April 30, 2001, will not be considered

to be a grandfathered alien.” 66 Fed. Reg. 16383, 16389 (effective Mar. 26, 2001). This regulation

was codified at 8 C.F.R. § 245.10(j). Id. at 16388–89. Following the passage of the Homeland


                                                     6
 
Security Act of 2002, which reorganized the enforcement of immigration law, the Attorney General

promulgated a final rule that, as relevant here, duplicated the text of § 245.10 and codified that

regulation at 8 C.F.R. § 1245.10. See 68 Fed. Reg. 9824, 9842 (effective Feb. 28, 2003).

        Nonetheless, Lee contends that the Chevron test does not apply to § 245.10(j) and

§ 1245.10(j) because the responsibility of determining who is a permissible “beneficiary” of a labor

certification falls within the purview of the Secretary of the Department of Labor (“DOL”)—not

the Attorney General. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“It is axiomatic

that an administrative agency’s power to promulgate legislative regulations is limited to the authority

delegated by Congress.”). Lee points to 20 C.F.R. § 656.11—a regulation promulgated by DOL—

which states that “[s]ubstitution . . . of an alien beneficiary on any application for permanent labor

certification . . . is prohibited for any request to substitute submitted after July 16, 2007.” Lee argues

that because this regulation “became effective after USCIS approved [his] substitution on July 5,

2007, it is clear that DOL did not intend to bar [his] substitution.” Petitioner’s Br. 25–26.

        Lee’s argument conflates two issues. The first inquiry is who (if anyone) can be named or

substituted as a beneficiary on an application for labor certification—a question that governs the

approval of the labor certification. The second inquiry is who is eligible for a change of status under

8 U.S.C. § 1255, which generally bars relief for individuals whose presence in the United States is

unlawful, see id. § 1255(c), unless the immigrant “is the beneficiary . . . of . . . an application for a

labor certification under section 1182(a)(5)(A) of [Title 8] that was filed pursuant to the regulations

of the Secretary of Labor on or before [April 30, 2001],” id. § 1255(i)(1)(B)(ii). This second inquiry

asks whether § 1255(i)(1)(B)(ii) refers to the application for a labor certification as of the cutoff date of

April 30, 2001, or whether § 1255(i)(1)(B)(ii) refers to that application at the present time. In other

words, does the statute grandfather certain beneficiaries, or does it grandfather certain applications?




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        While the first of these inquiries may be within the purview of the Secretary of Labor—an

issue we need not address—the second inquiry is decidedly a question of immigration law, relating

to the structure and purpose of § 1255. Accordingly, the particular question at issue in this appeal—

whether § 1255(i)(1)(B)(ii) confers “grandfathered” status on certain beneficiaries or certain

applications—is plainly within the scope of the Attorney General’s authority to interpret federal

immigration law. See 8 U.S.C. § 1103(a)(1); Negusie, 555 U.S. at 516–17.

                                                    B.

        Having concluded that Congress has delegated to the Attorney General the authority to

interpret ambiguities in § 1255(i)(1)(B)(ii), we now turn to the familiar two-step analysis set forth in

Chevron, 467 U.S. 837. At step one, we ask “whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as

well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–

43. But “if the statute is silent or ambiguous with respect to the specific issue,” we proceed to step

two, asking “whether the agency’s answer is based on a permissible construction of the statute.” Id.

at 843. We will not defer to an interpretation that is “‘arbitrary, capricious, or manifestly contrary to

the statute.’” Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012) (quoting Chevron, 467 U.S. at 844). But

“[i]f the agency interpretation is reasonable, then we must defer to it.” Id.

                                                     i.

        As with any question of statutory interpretation, we begin by examining the text of the

statute. Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885, 1891 (2011). “The

plainness or ambiguity of statutory language is determined by reference to the language itself, the

specific context in which that language is used, and the broader context of the statute as a whole.”

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). “In interpreting the statute at issue, we consider

not only the bare meaning of the critical word or phrase but also its placement and purpose in the


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statutory scheme.” Holloway v. United States, 526 U.S. 1, 6 (1999) (alteration and internal quotation

marks omitted).

        Applying these settled principles of statutory interpretation, we conclude that

§ 1255(i)(1)(B)(ii) does not “sp[eak] to the precise question at issue.” Chevron, 467 U.S. at 842. As

the Fourth Circuit observed in Suisa, 609 F.3d at 318, the term “beneficiary” in § 1255(i)(1)(B) refers

to both beneficiaries of a visa petition, see 8 U.S.C. § 1255(i)(1)(B)(i), and beneficiaries of labor

certifications, see id. § 1255(i)(1)(B)(ii). Because a visa petition has “one, and only one, adult

beneficiary[,] . . . Congress plainly contemplated that only a valid, direct beneficiary of a visa petition

be permitted to obtain grandfathered status under § 1255(i).” Suisa, 609 F.3d at 318. With respect

to labor certifications, however, “the beneficiary” referenced in § 1255(i)(1)(B)(ii) could refer to one

of three different classes of aliens: (1) initial beneficiaries only; (2) initial beneficiaries and substituted

beneficiaries, but only if the substitution occurred on or before April 30, 2001; or (3) currently

named beneficiaries, whether original or substituted, regardless of when the substitution occurred.

See id. at 319. Congressional silence regarding which of these three options is correct suggests

ambiguity under step one of the Chevron analysis. See Barnhart v. Walton, 535 U.S. 212, 218 (2002)

(“[S]ilence . . . normally creates ambiguity.”).

        The context of § 1255(i)(1)(B) also does not resolve the statutory question in Lee’s favor.

Although “the beneficiary . . . of . . . an application for a labor certification” filed by April 30, 2001

could refer to a substituted beneficiary, contextually it makes more sense to think that Congress

intended to grandfather particular beneficiaries rather than particular applications. The focus of

§ 1255(i)(1)(B)(ii)—which, as relevant to this appeal, was last amended in 2000—is on immigrants, not

employers. The provision’s apparent purpose is to provide immigrants with a limited opportunity to

obtain and benefit from grandfathered status by the “sunset” date of April 30, 2001. Lee had an

opportunity to become a beneficiary by this date, but he did not do so.


                                                       9
 
                                                     ii.

        For these same reasons, we conclude at step two of the Chevron analysis that 8 C.F.R.

§ 245.10(j) and § 1245.10(j) offer a reasonable interpretation of § 1255(i)(1)(B)(ii), and not one that is

“‘arbitrary, capricious, or manifestly contrary to the statute.’” Adams, 692 F.3d at 95 (quoting

Chevron, 467 U.S. at 844). The Fourth Circuit has endorsed the Attorney General’s interpretation in

forceful terms:

        The imposition of a sunset date plainly demonstrates that Congress intended that the
        benefit of § 1255(i) be temporary and apply only to a discrete group of aliens whose
        applications were pending on April 30, 2001. That intent would be frustrated if an
        alien substituted many years later as the beneficiary of an application for labor
        certification could nonetheless take advantage of the expired provision for
        adjustment of status.

Suisa, 609 F.3d at 320. We tend to agree, though for present purposes we need not find that

Congressional intent was “plainly demonstrate[d.]” Id. The absence of a manifestly unreasonable

interpretation of the statute is sufficient to sustain the regulation. As we have stated, the statutory

language admits of several interpretations, including the one adopted by the Attorney General, and

the statutory context supports the Attorney General’s interpretation. Accordingly, 8 C.F.R.

§ 245.10(j) and § 1245.10(j) offer a reasonable interpretation of the statute, and one to which we

must defer. Adams, 692 F.3d at 95.

                                                     C.

        Because § 245.10(j) and § 1245.10(j) provide a permissible construction of § 1255(i)(1)(B)(ii),

we affirm the agency’s determination that Lee, who was substituted as the beneficiary of a labor

certification after April 30, 2001, is ineligible for adjustment of status.




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                                       CONCLUSION

    To summarize:

    (1.)   Congress has provided that beneficiaries of labor-certification applications filed by

           April 30, 2001, may be eligible for an adjustment of immigration status

           notwithstanding their unlawful presence in the United States. See 8 U.S.C.

           § 1255(i)(1)(B)(ii).

    (2.)   The Attorney General has interpreted that provision as applying only to beneficiaries

           actually listed on labor-certification applications as of April 30, 2001—not to

           individuals who were later substituted as beneficiaries. See 8 C.F.R. § 245.10(j) (“An

           alien who was substituted for the previous beneficiary of [an] application for the

           labor certification after April 30, 2001, will not be considered to be a grandfathered

           alien.”); id. § 1245.10(j) (same).

    (3.)   The Attorney General’s interpretation of § 1255(i)(1)(B)(ii) is entitled to deference

           under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

    (4.)   Accordingly, the agency properly denied Lee’s application for a change of

           immigration status because he was not listed as a beneficiary on an application for

           labor certification until after April 30, 2001.

    The petition for review is DENIED.




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