                   Not for Publication in West's Federal Reporter

              United States Court of Appeals
                          For the First Circuit

No. 06-2225

                         RESENDE AFONSO DA CUNHA,

                                  Petitioner,

                                        v.

                          MICHAEL B. MUKASEY,*
                    United States Attorney General,

                                  Respondent.


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


                                     Before

                     Boudin, Howard, Circuit Judges,
                      and Saylor,** District Judge.


     Jose L. DelCastillo and DelCastillo & Associates, LLC, on
brief for petitioner.
     Peter Keisler, Assistant Attorney General, Civil Division,
Anthony W. Norwood, Senior Litigation Counsel, and Robbin K. Blaya,
Attorney, Office of Immigration Litigation, U.S. Department of
Justice, on brief for respondent.



                              December 24, 2008



*
 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B.
Mukasey has been substituted for former Attorney General Alberto R.
Gonzales.
**
     Of the District of Massachusetts, sitting by designation.
            Per Curiam.     Petitioner Resende Afonso Da Cunha appeals

an order of the Board of Immigration Appeals (BIA) affirming an

order of removal against him and denying his motion to reopen.                  We

affirm.

                                       I.

            Da Cunha, a citizen of Brazil, entered the United States

on a visitor visa in February, 2000 with permission to stay for six

months.    He overstayed that visa.         Da Cunha was employed with the

Bestfoods    Baking   Company   (Bestfoods)     in       Vermont,    and   through

Bestfoods began the process of applying for an adjustment of status

to become a lawful permanent resident.

            There is a three-step process for an alien seeking to

adjust his or her status based on employment.                     The first step

requires    the   alien's   employer    to   file    a    labor     certification

application.      See 8 U.S.C. § 1255(i)(1)(B)(ii).          After acquiring a

valid labor certification, the employer must then as a second step

file an I-140 form (Immigrant Petition for Alien Worker) on the

alien's behalf.     See 8 U.S.C. § 1154.      Finally, the alien must file

an I-485 form (Application for Adjustment of Status).                 See id.

            Here, Da Cunha commenced the process with Bestfoods but

did not finish it.     On April 27, 2001, Bestfoods filed a Form ETA-

750 on his behalf.        The Vermont Department of Labor1 assigned a


1
   In July 2005, the Vermont Department of Labor was formed by
merging the former Departments of Labor and Industry and Employment

                                    -2-
"priority date" of April 30, 2001 to the application.             On June 20,

2001, the Immigration and Naturalization Service (INS)2 served Da

Cunha with a Notice to Appear, charging that he was subject to

removal for overstaying his visa.          He was detained by the INS and,

as    a   consequence,   was    terminated    from    his    employment    with

Bestfoods.     Bestfoods did not elect to further pursue the labor

certification process on Da Cunha's behalf.

             In 2002, Da Cunha was employed by Silva's Donuts.             That

employer filed a new labor certification application and an I-140

on his behalf.     In April, 2004, the DOL approved the application,

which had a priority date of September 25, 2002, and the I-140.

That priority date made him ineligible for an adjustment of status

under section 245(i) of the Immigration and Naturalization Act, so

the   government   moved   to    pretermit    his    I-485   application    for

adjustment of status.      See 8 U.S.C. § 1255(i)(B)(ii).

             An alien applying for an adjustment of status as the

beneficiary of a labor certification petition must show that the

petition (1) was properly filed pursuant to the regulations of the

Secretary of Labor on or before April 30, 2001, and (2) was


and Training.   For ease of understanding, we will refer to the
Vermont Department of Labor when referring to either of the former
agencies.
2
  In March 2003, the functions of the INS were reorganized and
transferred to the Department of Homeland Security (DHS). Dacosta
v. Gonzales, 449 F.3d 45, 47 n. 1 (1st Cir. 2006).        To avoid
confusion, we will use “INS” whether referring to the former INS or
the present DHS.

                                     -3-
"approvable when filed."           8 C.F.R. § 245.10(a)(1)(i)(B).               An

applicant meeting these criteria is "grandfathered."                   Id.       A

grandfathered alien may apply for an adjustment of status through

a new employer using the earlier application's priority date.                See

8   C.F.R.   §     245.10(a)(3)(2007).        Da   Cunha   argued   before      an

Immigration Judge ("IJ") that he was grandfathered by his first

labor certification application, and that his second application

should not be pretermitted.

             The    government    argued    that   Da   Cunha's   first    labor

certification did not give him grandfathered status because that

labor certification was not "approvable when filed" as required by

8 C.F.R. § 245.10(a)(1)(i)(B).        In support of this contention, the

government produced a July, 2001 letter from the Vermont Department

of Labor to Da Cunha, indicating that Bestfoods was an "inactive"

employer.     The government also noted that Da Cunha's pay stubs

listed his employer as Charles Freihofer Baking, rather than

Bestfoods,    and    that   the   labor    certification   was    signed   by   a

Bestfoods supervisor, not by a more senior company official.

             Da Cunha did not introduce evidence before the IJ to

refute the government's contention.

             In March, 2005, the IJ concluded that Da Cunha’s first

labor certification was not approvable when filed because it

referenced an employer who was "inactive" at the time of filing.

Noting that Da Cunha did not refute his employer's inactive status,


                                      -4-
the IJ pretermitted his I-485 adjustment of status application and

denied Da Cunha voluntary departure as a matter of discretion.

              Da Cunha appealed the decision to the BIA and also filed

a motion to reopen, requesting that the BIA remand his case to the

IJ so the IJ could consider new evidence about whether he should be

"grandfathered" under section 245(i). The BIA adopted and affirmed

the decision of the IJ.      The BIA also denied Da Cunha’s motion to

reopen, finding that the documents he sought to admit were not new

or previously unavailable.      This petition followed.

                                      II.

              Da Cunha argues that his first labor certification was

"approvable when filed" and that the BIA’s denial of his motion to

reopen was an abuse of discretion.3

              As to his first argument, we review the IJ’s decision

under the substantial evidence standard.          Chreng v. Gonzales, 471

F.3d 14, 21 (1st Cir. 2006).          Under this standard, the decision

will stand unless the record evidence would compel a reasonable

factfinder to find otherwise.         Pan v. Gonzales, 445 F.3d 60, 61

(1st   Cir.    2006).   Where   the    BIA   summarily   affirms   the   IJ’s

decision, we review the IJ’s decision directly.          Tota v. Gonzales,

457 F.3d 161, 165 (1st Cir. 2006); 8 C.F.R. § 1003.1(e)(4)(2007).



3
   Defendant’s other arguments on appeal were never raised before
the BIA and thus are not properly before us. Molina De Massenet v.
Gonzales, 485 F.3d 661, 664 (1st Cir. 2007) (declining to review
issues not raised before the BIA).

                                      -5-
            This case hinges on the meaning of "approvable when

filed."     If Da Cunha's first labor certification was approvable

when   filed,    its     priority    date    of    April    30,     2001   would    have

grandfathered Da Cunha such that he could subsequently be eligible

to   undertake    the    three-step       labor    certification          process   with

another employer.        If it was not approvable when filed, then he is

not grandfathered and not eligible for an adjustment of status

through   his    employment        with   Silva's    Donuts       because    his    2002

priority date is too late under the regulations.                           8 C.F.R. §

245.10(a)(1)(i)(B).

            "Approvable when filed"               means     that,    at    the time of

filing, the qualifying application for labor certification was

"properly     filed,     meritorious        in    fact,    and    non-frivolous."

Echevarria v. Keisler, 505 F.3d 16, 18 (1st Cir. 2007); 8 C.F.R. §

245.10(a)(3).      The burden is on the petitioner to show that his

application was approvable when filed. 8 U.S.C. § 1229a(c)(2).

            We focus on the second prong, whether the application was

meritorious in fact.        We said in Echevarria that there need not be

a finding of fraud to support a conclusion that an application is

not meritorious in fact.           505 F.3d at 19 n. 3.          There, a finding of

"identified      gaps"    in   a    petitioner's          application,      where   the

petitioner had been an opportunity to explain the gaps but failed

to do so, was sufficient to show that the application was not

meritorious in fact.        Id.


                                          -6-
          Here, like in Echevarria, the IJ identified a specific

discrepancy in the labor certification application:      Bestfoods'

"inactive" status.   The Vermont Department of Labor indicated that

Bestfoods was an "inactive" employer, in that it was not paying

unemployment taxes for its workers, at the time that Da Cunha’s

first labor certification was filed.   The burden was on Da Cunha to

prove that his first labor certification was properly filed, yet he

offered no evidence before the IJ or the BIA to refute the inactive

status of his employer.   In fact, Da Cunha was explicitly invited

to send contrary evidence or an explanation as to why Bestfoods was

inactive to the Vermont Department of Labor, but did not do so.

          Because Da Cunha failed to offer an explanation for the

discrepancy that satisfied the IJ, the IJ concluded that Da Cunha’s

first labor certification was not "approvable when filed" because

it was not meritorious in fact.    This conclusion is supported by

substantial evidence.

          We note that Da Cunha finds no refuge in the provision in

8 C.F.R. § 1245.10(a)(3) that preserves an alien's grandfathered

status if a "petition that was properly filed on or 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 [and] . . . the alien is otherwise eligible."

Because we conclude that his first labor certification was not




                                -7-
approvable when filed, it does not matter if it was later revoked

due to circumstances that arose after April 30, 2001.

                                   III.

            We review the BIA’s denial of a motion to reopen or

reconsider only for abuse of discretion. Abdullah v. Gonzales, 461

F.3d 92, 99 (1st Cir. 2006).      This standard is highly deferential;

focusing on the rationality of the decision to deny reconsideration

or reopening, not on the merits of the underlying claim.        Id.    “An

abuse of discretion will be found where the BIA misinterprets the

law,   or   acts   either   arbitrarily   or   capriciously.”   Wang   v.

Ashcroft, 367 F.3d 25, 27 (1st Cir. 2004).         Motions to reopen are

permitted only where they present new evidence that is material and

was previously unavailable.      Orehhova v. Gonzales, 417 F.3d 48, 52

(1st Cir. 2005); 8 C.F.R. § 1003.2(c)(1)(2007).

            Here, the documents submitted to the BIA with Da Cunha’s

motion to reopen were not new, material and previously unavailable.

In particular, the company report and the news story pertaining to

when Bestfoods was purchased by another company were previously

available.    Thus, there was no abuse of discretion in denying Da

Cunha’s motion to reopen.

                                   IV.

            Da Cunha’s petition for review is denied.

            So Ordered.




                                   -8-
