                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHUNG HOU HSIAO,                          No. 15-55676
              Plaintiff-Appellant,
                                             D.C. No.
                 v.                       8:14-cv-00728-
                                            DOC-DFM
MARK J. HAZUDA, Director,
Nebraska Service Center, U.S.
Citizenship and Immigration                 OPINION
Services; JAMES MCCAMENT, Acting
Director, U.S. Citizenship and
Immigration Services; JEFFERSON B.
SESSIONS III, Attorney General of
the United States; ELAINE DUKE,
Acting Secretary, Department of
Homeland Security,
               Defendants-Appellees.


      Appeal from the United States District Court
         for the Central District of California
       David O. Carter, District Judge, Presiding

         Argued and Submitted May 10, 2017
                Pasadena, California

                Filed September 1, 2017
2                         HSIAO V. HAZUDA

  Before: Richard R. Clifton and Michelle T. Friedland,
Circuit Judges, and Thomas O. Rice,* Chief District Judge.

                     Opinion by Judge Clifton


                            SUMMARY**


                             Immigration

    The panel affirmed the district court’s decision granting
summary judgment in favor of the United States Citizenship
and Immigration Service in an action brought by Chung Hou
Hsiao challenging the denial of his application to adjust his
status to that of a lawful permanent resident.

    The panel addressed adjustment of status under 8 U.S.C.
§ 1255(i), a grandfathering provision that allows an alien who
would otherwise be disqualified from securing adjustment of
status due to unauthorized employment or failing to maintain
lawful status to nevertheless obtain adjustment of status if the
alien is the beneficiary of a visa petition filed on or before
April 30, 2001. In order to qualify, the visa petition must
have been “approvable when filed,” meaning, in part, that the
visa petition was “meritorious in fact.”




    *
      The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      HSIAO V. HAZUDA                           3

    Hsiao claimed that he was the beneficiary of such visa
petitions – even though the petitions were denied – because
they were “approvable when filed.” Hsiao’s position was
that, to determine whether a previously denied visa petition
was “meritorious in fact,” USCIS must reevaluate the petition
anew, taking account of any additional evidence that an alien
may choose to submit.

    The panel held that, in determining whether an alien’s
prior visa petition was “meritorious in fact,” it is generally
permissible to treat a denial of the petition as dispositive if it
was made on the merits and the denial was not the result of
circumstances that changed after the petition was filed. The
panel acknowledged that there may be exceptions to this
general rule, but that such exceptions did not apply in Hsiao’s
case, and there was no allegation that his circumstances
changed between when his visa petitions were filed and when
they were denied. The panel further held that, although
USCIS may have had the option to reconsider the merits of
Hsiao’s prior petitions in light of new evidence he submitted,
it was not required to do so.


                          COUNSEL

Scott Eric Bratton (argued) and Margaret W. Wong, Margaret
Wong & Associates, Cleveland, Ohio, for Plaintiff-Appellant.

Glenn Matthew Girdharry (argued), Assistant Director;
Elianis N. Perez, Senior Litigation Counsel; William C.
Peachey, Director; District Court Section, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.
4                     HSIAO V. HAZUDA

                          OPINION

CLIFTON, Circuit Judge:

    The Immigration and Nationality Act permits an alien
who is already in the United States and meets certain criteria
to apply to adjust his immigration status to that of an alien
lawfully admitted for permanent residence without having to
return to his country of origin and submit an application at the
United States consulate in that country. 8 U.S.C. § 1255(a).
An alien is disqualified from using this process, however, if
he has engaged in unauthorized employment or has failed to
continuously maintain lawful immigration status since
entering the United States. 8 U.S.C. § 1255(c)(2). Such a
disqualification will be forgiven if the alien was the
beneficiary of a qualifying visa petition (or labor certification
application) that was filed on or before April 30, 2001, and if
the alien meets certain other requirements. 8 U.S.C.
§ 1255(i). In order to qualify, the visa petition must have
been “approvable when filed.” 8 C.F.R. § 245.10(a)(1)(i)(A).

    What does it mean for a visa petition to have been
“approvable when filed”? If the petition was actually
approved, then it qualifies, of course, but what if it was
denied? Is the denial dispositive, or should an alien be
permitted to relitigate the merits of a previously denied
petition when he makes a subsequent application to adjust his
immigration status?

    In this case, an alien sought to adjust his immigration
status to that of a lawful permanent resident, but in order to
do so, he needed to prove that at least one of the two visa
petitions he filed prior to 2001 was approvable when filed,
even though both were ultimately denied. United States
                      HSIAO V. HAZUDA                          5

Citizenship and Immigration Services (“USCIS”) rejected the
alien’s application to adjust his status because the petitions
were denied on their merits and because there was no
allegation that the petitions were denied on the basis of
circumstances that changed between the time when they were
filed and the time when they were adjudicated. The alien
challenged the denial of his application to adjust status in
district court, where he argued that the mere fact that the prior
visa petitions were denied was insufficient to demonstrate
that they were not approvable when filed. He contended that
USCIS should have reevaluated the merits of the visa
petitions in light of new evidence he submitted.

    The district court granted summary judgment to USCIS
and held that USCIS was permitted to reevaluate the merits
of a previously denied visa petition to determine whether it
was approvable when filed but that it was only obligated to
do so if the denial was due to circumstances that changed
between when the petition was filed and when it was
adjudicated. We agree with the district court, and we affirm.

I. Background

    Chung Hou Hsiao came to the United States from Taiwan
in 1993 on a student visa. He earned a master’s degree in
electrical engineering from Fairleigh Dickinson University in
New Jersey in 1995.

   In 1998 Hsiao filed an I-140 petition seeking a visa
pursuant to 8 U.S.C. §§ 1153(b)(2)(A) and 1154(a)(1)(F),
which permit an alien with an advanced degree or
“exceptional ability” to obtain a visa. The statute authorizes
the Attorney General to waive an otherwise-applicable
requirement that the alien’s services be sought by a specific
6                       HSIAO V. HAZUDA

employer if the Attorney General determines that such a
waiver is “in the national interest.”               8 U.S.C.
§ 1153(b)(2)(B)(i). Hsiao stated that his advanced degree and
exceptional ability were in the field of electrical and
computational engineering. After considering the documents
Hsiao provided in response to a request for additional
evidence, the Immigration and Naturalization Service1 denied
the petition, explaining that, although the record established
that Hsiao was “a competent researcher,” “[t]he record [did]
not contain evidence to establish that the waiver of the
[requirement for a] job offer [by a specific employer] would
be in the national interest. The record establishe[d] that the
qualifications and the job would be easily articulated on a
labor certification and job offer.”

    Hsiao filed a second I-140 petition in 2000 seeking a visa
pursuant to 8 U.S.C. §§ 1153(b)(1)(A) and 1154(a)(1)(E),
which permit an alien of “extraordinary ability” to obtain a
visa without the requirement that the alien’s services be
sought by an employer. Hsiao claimed that he possessed
extraordinary ability in the field of computer technology.
After the INS requested additional evidence and Hsiao
provided supplemental materials, the INS concluded that “the
evidence submitted [did] not establish that [Hsiao was] one
of that small percentage who [had] risen to the very top of the
field” and that he thus did not qualify “as an alien of
extraordinary ability.” The INS therefore denied the petition.




    1
      The INS was eliminated in 2003, and its functions were reassigned
to various agencies within the Department of Homeland Security,
including USCIS. See Homeland Security Act of 2002, Pub. L. No.
107–296, 116 Stat. 2135 (2002).
                         HSIAO V. HAZUDA                                7

    Hsiao filed a third I-140 petition in 2012 pursuant to
8 U.S.C. § 1153(b)(2)(A), the “exceptional ability” provision.
He claimed exceptional ability in solar technology, a different
field from what he had claimed in his prior petitions. He
again sought a national interest waiver to the job offer
requirement, and USCIS approved the petition.

    Hsiao then filed an I-485 application to adjust his status
to that of a lawful permanent resident. He also filed a
supplement stating that he was in unlawful immigration status
because he had remained in the United States past the end of
the period of his lawful admission and had failed to maintain
lawful status.      Ordinarily, that circumstance (or the
circumstance of having undertaken employment without
authorization, which also appears to apply to Hsiao) would,
pursuant to 8 U.S.C. § 1255(c)(2), disqualify an alien from
obtaining adjustment of status.

    Hsiao sought relief from that disqualification on the basis
of 8 U.S.C. § 1255(i), the “grandfathering” provision. The
grandfathering provision allows an alien who would
otherwise be disqualified from securing adjustment of status
due to 8 U.S.C. § 1255(c) to nevertheless obtain adjustment
of status provided that he meets certain requirements. In
addition to other requirements that the parties seem to agree
Hsiao satisfied, the grandfathering provision requires that the
alien be the beneficiary of “a petition for classification under
[8 U.S.C. § 1154] that was filed with the Attorney General on
or before April 30, 2001.”2 8 U.S.C. § 1255(i)(1)(B)(i).


    2
       Originally, 8 U.S.C. § 1255(i) was forward-looking and allowed
certain otherwise ineligible aliens to obtain adjustment of status without
regard to when any visa petition may have been filed as long as they paid
a fee. Pub. L. No. 103-317, § 506(b), 108 Stat. 1724 (1994). The original
8                        HSIAO V. HAZUDA

According to 8 C.F.R. § 245.10(a)(1)(i)(A), a petition only
counts under the grandfathering provision if it was
“approvable when filed.”

    Hsiao claimed he was the beneficiary of two such
petitions, namely the 1998 and 2000 petitions described
above. He argued that, even though those petitions were
denied, they were nevertheless approvable when filed. In
support of his position, Hsiao cited some evidence that was
in the record at the time the petitions were originally
adjudicated, and he also provided new evidence. USCIS
denied Hsiao’s application to adjust status, explaining that the
petitions “were denied for cause and were not approved” and
concluding that the “petitions were not approvable when
filed.” His administrative appeal was denied on the same
grounds.

    Hsiao then filed a complaint in the Central District of
California, where he then resided, invoking the
Administrative Procedure Act to challenge the denial of his
application to adjust his status. The district court concluded
that USCIS did not violate the APA in denying Hsiao’s
application to adjust his status, denied summary judgment to
Hsiao, and granted summary judgment to USCIS. Hsiao
timely appealed.




form of § 1255(i) subsequently expired. Id. § 506(c). Congress, however,
extended its application for aliens who made certain filings prior to a
specific date, thus allowing those aliens to be grandfathered. Pub. L. No.
105-119, § 111(a), 111 Stat. 2440 (1997); Pub. L. No. 106–554,
§ 1502(a)(1)(B), 114 Stat. 2763 (2000).
                       HSIAO V. HAZUDA                        9

II. Discussion

    We review a grant of summary judgment de novo.
Ramirez v. Brown, 852 F.3d 954, 958 (9th Cir. 2017). When
considering a challenge to a final agency decision brought
pursuant to the APA, “[t]he reviewing court shall . . . hold
unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2).

    Hsiao does not challenge the original denial of his 1998
and 2000 I-140 petitions. Indeed, he could not do so as the
time period for challenging those denials has long since run.
See 28 U.S.C. § 2401(a). Nor does he contend that the
relevant regulations are improper interpretations of the
statute. Rather, the dispute in this appeal is whether USCIS
correctly interpreted its own regulations in determining that
Hsiao’s 1998 and 2000 I-140 petitions were not “approvable
when filed.”

   The term “approvable when filed” is defined in the
applicable regulation:

        Approvable when filed means that, as of the
        date of the filing of the qualifying immigrant
        visa petition . . . , the qualifying petition . . .
        was properly filed, meritorious in fact, and
        non-frivolous (“frivolous” being defined
        herein as patently without substance). This
        determination will be made based on the
        circumstances that existed at the time the
        qualifying petition or application was filed. A
        visa petition that was properly filed on or
10                   HSIAO V. HAZUDA

       before April 30, 2001, and was approvable
       when filed, but was later withdrawn, denied,
       or revoked due to circumstances that have
       arisen after the time of filing, will preserve the
       alien beneficiary’s grandfathered status if the
       alien is otherwise eligible to file an
       application for adjustment of status under
       [8 U.S.C. § 1255(i)].

8 C.F.R. § 245.10(a)(3). “Properly filed” means that the
petition was received or postmarked by April 30, 2001, and
was accepted for filing.          8 C.F.R. § 245.10(a)(2).
“Circumstances that have arisen after the time of filing means
circumstances similar to those outlined in [8 C.F.R.
§§ 205.1(a)(3)(i), (ii)].” 8 C.F.R. § 245.10(a)(4). In turn,
8 C.F.R. §§ 205.1(a)(3)(i), (ii) discuss voluntary withdrawal
of a petition as well as situations in which a petition will be
revoked due to certain changes in circumstances experienced
by the alien or his sponsor including death, marriage, divorce,
a child reaching the age of twenty-one, and bankruptcy.

    USCIS does not contend that Hsiao’s petitions were not
properly filed or that they were frivolous. Accordingly, the
only dispute is whether the petitions were “meritorious in
fact,” or, more precisely, what process USCIS should have
followed in determining whether the petitions were
meritorious in fact.

    Hsiao’s position is that, to determine whether a previously
denied visa petition was meritorious in fact, USCIS must
reevaluate the petition anew, taking account of any additional
evidence that an alien may choose to submit. By contrast,
USCIS contends that consideration of additional evidence
may be warranted when a petition is denied based on
                      HSIAO V. HAZUDA                        11

circumstances that arose after filing, but when a petition is
denied on the merits absent such a change in circumstances,
then USCIS is permitted to rely on the mere fact of the denial
as conclusive proof that the petition was not meritorious in
fact.

    An agency’s interpretation of its own regulation is
“controlling unless plainly erroneous or inconsistent with the
regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997)
(internal quotation marks omitted). Even if we were not
required to accord deference to the agency’s interpretation
here, we would conclude that USCIS’s interpretation of the
regulations in this case is more logical.

    USCIS’s position conforms more closely with the text of
the regulation. The regulation states that “[a] visa petition
that was . . . approvable when filed, but was later withdrawn,
denied, or revoked due to circumstances that have arisen
after the time of filing, will preserve the alien beneficiary’s
grandfathered status.” 8 C.F.R. § 245.10(a)(3) (emphasis
added). This statement means that the term “approvable
when filed” is not an invitation to relitigate any petition that
was denied on its merits. Rather, the “approvable when filed”
standard is a safety valve for petitions that would have been
approved on their merits if they had been adjudicated on the
day they were filed but were not approved because of
subsequent events.

    This reading comports with the agency’s guidance from
when the regulation was adopted. The background section
published in the Federal Register concurrently with
promulgation of the regulation explains: “When the Service
has denied an immigrant visa petition (or has revoked a prior
approval) based on ineligibility at the time of filing, the
12                    HSIAO V. HAZUDA

petition does not qualify to grandfather the alien beneficiary
for purposes of section [1255(i)].” Adjustment of Status to
That Person Admitted for Permanent Residence; Temporary
Removal of Certain Restrictions of Eligibility, 66 Fed. Reg.
16383, 16385 (Mar. 26, 2001). There is no suggestion in the
regulation or the guidance that USCIS must reevaluate a
petition that has already been denied when the denial was
based on the circumstances that existed when the petition was
filed.

    This understanding is also consistent with the First
Circuit’s interpretation of the regulation. In Echevarria v.
Keisler, 505 F.3d 16 (1st Cir. 2007), an alien argued that her
previously filed visa petition was meritorious in fact even
though it was denied on the merits. The alien’s petition had
originally been denied because an immigration officer
determined that she had failed to demonstrate that her
marriage was bona fide. Id. at 18. Like Hsiao, when the
alien subsequently sought grandfathering for purposes of an
application to adjust status, she submitted new evidence and
argued that the agency “was under some automatic obligation
to decide the bona fides issue afresh on whatever record [was
then] presented long after the event and long after a contrary
determination for which no review was sought.” Id. at 20.

    Echevarria explained that even though a prior denial of
a visa petition hypothetically could subsequently prove to
have been mistaken, “there is no reason to think that the
grandfathering provision was meant to give a second bite at
the apple to one who earlier had a full and fair opportunity to”
make his case. Id. at 19–20. The court therefore held “that
in general, possibly with rare exceptions, a court should not
require revisiting the original visa determination, if one was
made ‘on the merits,’ did not depend on changed
                      HSIAO V. HAZUDA                        13

circumstances, and could have been effectively reviewed at
the time.” Id. at 20.

    We agree. Hsiao does not contend that there was no
opportunity for review when his visa petitions were originally
denied. If he believed that the denials were improper, he
should have challenged the denials then and there. Requiring
the agency to now readjudicate a question that was already
resolved well over a decade ago would not be a sensible
reading of the regulation.

    The Board of Immigration Appeals’ decision in In re
Riero, 24 I. & N. Dec. 267 (B.I.A. 2007), which was decided
shortly before Echevarria and on which Hsiao relies heavily,
is not to the contrary. In Riero, the alien had also been the
beneficiary of a visa petition that was rejected because of
“significant doubt as to the bona fides of [his] marriage.” Id.
at 270. The Immigration Judge nevertheless considered new
evidence about the marriage adduced as part of Riero’s
application to adjust status. Id. at 269. The BIA agreed with
the IJ that the new evidence was insufficient to establish that
the marriage was bona fide and therefore also agreed that
Riero was not eligible for adjustment of status. Id. at 270.
Hsiao contends that USCIS should have conducted a
procedurally similar evaluation of the new evidence in his
case.

    The BIA’s approval of an IJ’s exercise of discretion to
review new evidence in one case, however, does not obligate
a similar review for all future applicants who seek to avail
themselves of the grandfathering provision. Even though the
Echevarria court did not cite Riero, it allowed for such a
distinction when it noted that whether an adjudicator of a later
application to adjust status “could as a matter of grace choose
14                         HSIAO V. HAZUDA

to reexamine [an] earlier [visa petition] decision [was] a
different issue which [was] not presented in [that] case.”
505 F.3d at 20. That question is not presented by Hsiao’s
case either. Although USCIS may have had the option to
reconsider the merits of Hsiao’s prior petitions in light of the
new evidence he submitted, it was not required to do so.3

    Accordingly, we hold that, in determining whether an
alien’s prior visa petition was “meritorious in fact” for
purposes of the grandfathering provision, it is generally
permissible to treat a denial of the petition as dispositive if
the denial was made on the merits and if the denial was not
the result of circumstances that changed after the petition was
filed. We acknowledge that there may be exceptions to this
general rule, such as if there was not an opportunity for
effective review at the time of the original denial.

    Such exceptions do not apply in Hsiao’s case, however.
His visa petitions were denied on the merits, and there is no
allegation that his circumstances changed between when the
petitions were filed and when they were denied. USCIS was

     3
         Hsiao also cites a Fourth Circuit case, Ogundipe v. Mukasey,
541 F.3d 257 (4th Cir. 2008), in support of his position. In Ogundipe, the
IJ had reviewed new evidence submitted by an alien to evaluate whether
his visa petition was approvable when filed. Id. at 259–61. Approving of
the IJ’s decision to consider that evidence, the Ogundipe court explained
that it found “nothing in the applicable statutes or regulations that prevents
an IJ in removal proceedings from considering other evidence that a
petition was approvable when filed, even if that evidence was never
submitted in conjunction with the original petition.” Id. at 260 (emphasis
added). The court went on, however, to suggest that consideration of such
evidence might be required. Id. at 261. To the extent that Ogundipe held
that it was mandatory to consider new evidence presented by an alien
seeking to adjust his status under the grandfathering provision, we
disagree for the reasons stated in this opinion.
                      HSIAO V. HAZUDA                     15

thus permitted to treat the denials of the petitions as
dispositive in determining that they were not meritorious in
fact and therefore were not approvable when filed. USCIS’s
determination that Hsiao was not grandfathered and not
eligible to adjust his status was therefore not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We affirm the
district court’s grant of summary judgment to USCIS.

III.     Conclusion

    The district court correctly concluded that USCIS was
permitted to treat prior merits-based denials of Hsiao’s visa
petitions as dispositive proof that the petitions were not
approvable when filed. We therefore affirm.

       AFFIRMED.
