     08-4081-ag
     Ahmad v. Holder


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
     1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
     32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal
     Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
     serve a copy of it on any party not represented by counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 13th day of May, two thousand ten.
 4
 5   PRESENT:
 6
 7                     ROSEMARY S. POOLER,
 8                     PETER W. HALL,
 9                     DEBRA ANN LIVINGSTON,
10                                    Circuit Judges.
11
12
13   MUSHTAQ IMRAN AHMAD-MUSHTAQ, a.k.a.
14   IMRAN MUSHJA MOSHTAQ AHMAD,
15             Petitioner,
16
17           -v.-                                               No. 08-4081-ag
18                                                              Summary Order
19   ERIC H. HOLDER, JR., U.S. ATTORNEY
20   GENERAL,*
21              Respondent.
22
23
24                                     William E. Graves, Jr., Graves & Doyle, Boston, MA, for Petitioner.
25
26                                     Michele Y. F. Sarko, Office of Immigration Litigation (Michael F.
27                                     Hertz, Acting Assistant Attorney General, Civil Division, and
28                                     Michelle G. Latour, Assistant Director, Office of Immigration
29                                     Litigation, on the brief), U.S. Department of Justice, for Respondent.


             *
             Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant to
     Federal Rule of Appellate Procedure 43(c)(2).
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 4               UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

 5       Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

 6       Government’s motion to remand to the BIA is GRANTED. The decision of the BIA is VACATED,

 7       and the case is REMANDED to the BIA for further proceedings. Ahmad’s petition for review and

 8       motion for stay of deportation are DISMISSED as moot.

 9               Petitioner Mushtaq Imran Ahmad-Mushtaq (“Ahmad”), a native and citizen of Pakistan,

10       seeks review of a July 22, 2008 order of the BIA adopting and affirming an August 31, 2006 decision

11       of Immigration Judge (“IJ”) Michael W. Straus. The IJ had found Ahmad removable as charged and

12       also denied Ahmad’s application for adjustment of status after concluding, based on the BIA’s

13       decision in In re Perez Vargas, 23 I & N Dec. 829 (BIA 2005), that he lacked jurisdiction to

14       determine whether Ahmad’s approved employment-based visa petition remained valid under section

15       204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), following a change in Ahmad’s

16       employer sponsor. See In re Mushtaq Imran Ahmad-Mushtaq a.k.a. Imran Mushja Moshtaq Ahmad,

17       No. A79 076 798 (B.I.A. July 22, 2008), aff’g No. A79 076 798 (Immig. Ct. Hartford, CT, Aug. 31,

18       2006). We assume the parties’ familiarity with the underlying facts and procedural history in this

19       case.

20               The Government requests that we remand this case to the BIA in light of the Board’s recent

21       decision in In re Marcal Neto, 25 I & N Dec. 169 (BIA 2010), which overruled the Board’s

22       precedent in Vargas. As noted, both the IJ and BIA in this case relied on Vargas in concluding that

23       the IJ lacked jurisdiction to determine whether Ahmad’s new job was “in the same or a similar

24       occupational classification as the job for which [his adjustment of status] petition was filed,” 8

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 1   U.S.C. § 1154(j), and therefore whether his employment-based visa petition remained valid. As a

 2   result, they considered themselves powerless to offer Ahmad the relief he sought. In Neto, by

 3   contrast, after reviewing decisions of the Fourth, Fifth, and Sixth Circuits rejecting the reasoning of

 4   Vargas, the Board concluded that IJs do in fact possess jurisdiction to make the relevant

 5   determinations under section 1154(j). See 25 I & N Dec. at 171-76 (noting decisions in Sung v.

 6   Keisler, 505 F.3d 372 (5th Cir. 2007); Matovski v. Gonzales, 492 F.3d 722 (6th Cir. 2007); Perez-

 7   Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007)).

 8          Under these circumstances, we agree that remand to the Board for further proceedings is

 9   appropriate. See NLRB v. Food Store Employees Union, 417 U.S. 1, 10 n.10 (1974) (“[A] court

10   reviewing an agency decision following an intervening change of policy by the agency should

11   remand to permit the agency to decide in the first instance whether giving the change retrospective

12   effect will best effectuate the policies underlying the agency's governing act.”); see also Xiu Fen Xia

13   v. Mukasey, 510 F.3d 162, 167-68 (2d Cir. 2007) (discussing when remand under Food Store

14   Employees is proper). Accordingly, the Government’s motion to remand to the BIA is GRANTED,

15   the decision of the BIA is VACATED, and the case is REMANDED to the BIA . Ahmad’s petition

16   for review and motion for stay of deportation are DISMISSED as moot.
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20                                                          FOR THE COURT:
21                                                          Catherine O’Hagan Wolfe, Clerk
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