                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 09-2096


HYENG KAB LEE; MYUNG HEE LEE, a/k/a Myung Hee Kim; CHUNG
LEE; HYO LEE,

                 Petitioners,

            v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petitions for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 23, 2010              Decided:   November 5, 2010


Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and James C.
DEVER III, United States District Judge for the Eastern District
of North Carolina, sitting by designation.


Petitions    granted   and   remanded    by   unpublished   per   curiam
opinion.


ARGUED: Rachel Sobin Ullman, Silver Spring, Maryland, for
Petitioners.   Carmel A. Morgan, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, Russell J. E. Verby,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Hyeng          Kab   Lee,       Myung    Hee       Lee,    Chung       Lee,    and    Hyo   Lee,

natives and citizens of South Korea, petition for review of a

Board        of    Immigration         Appeals          (BIA)       order      dismissing        their

appeal,       denying      their       motion       for    remand,        and      ordering      their

voluntary departure.                 The Lees contend that they are eligible to

adjust their status as “grandfathered aliens” under 8 U.S.C.

§ 1255(i)          and    that       the     BIA    erred       in      concluding        that     the

Immigration Judge (IJ) was without authority to determine if

Hyeng     Lee’s         labor    certificate            was     “approvable         when    filed.”

Because we agree with the Lees that the BIA erred in conducting

its review, we grant the petitions for review and remand the

case for further proceedings.



                                                   I.

        Hyeng Lee entered the United States on June 4, 1998, as a

non-immigrant B2 (tourist) visitor.                             Hyeng’s wife, Myung Lee,

and their two sons, Chung and Hyo, entered the United States on

January 9, 1999, as non-immigrant B2 visitors.                                      All four then

remained           in     the        United     States          beyond         their      one-month

authorization.

        On        April    12,       2001,     Byeong          H.       Lee,    a    construction

contractor,          filed      an    application         for       a   labor      certificate     on

behalf of Mr. Lee.               The application was approved on October 31,

                                                    3
2001.      The    next   January,     an   employment-based    immigrant   visa

petition was approved for Mr. Lee.               Mr. Lee then filed for an

adjustment of status, which was denied on December 29, 2004.                   In

addition, the United States Citizenship and Immigration Services

(USCIS) revoked Mr. Lee’s labor certificate for fraud. 1               On April

8, 2005, the Department of Homeland Security (DHS) served the

Lees with notices to appear, alleging that they were subject to

removal.

     The family’s case was assigned to a single IJ and scheduled

for hearing on March 14, 2006.             In the interim, Sizzling Express

Columbia Plaza, Inc., filed a labor certification petition for

Mrs. Lee, which was approved on February 6, 2006.                      Sizzling

Express    also    filed   a   visa   petition   on   Mrs.    Lee’s   behalf   on

August 17, 2007.

     Meanwhile, the IJ granted a continuance at the March 14,

2006, hearing and granted additional continuances on September

12, 2006, January 24, 2007, and March 27, 2007.                   As relevant

here, several of the continuances served to permit Mr. Lee to

pursue an administrative appeal of the revocation of his labor


     1
       Mr. Lee’s visa petition was prepared by attorney Steven Y.
Lee, who subsequently pled guilty to conspiracy to commit
immigration fraud. In response, USCIS sent Mr. Lee a notice of
its intention to revoke his visa petition and, after Mr. Lee
failed to file a response to the notice, USCIS revoked the
petition.



                                           4
certificate.           The Lees’ hearing finally occurred on September

25, 2007.        At the hearing, the Government informed the IJ that

the     USCIS    had    upheld   the     invalidation         of       Mr.   Lee’s        labor

certificate.          In response, the Lees requested “one last chance”—

an    additional       continuance      permitting         them   to    pursue       a    “nice

clean” immigrant petition for Mrs. Lee.                      J.A. at 319, 322.              The

Government objected to the request, and the IJ took the matter

under advisement.            On October 9, the IJ issued a written order

denying the motion for a continuance.                       The IJ found the Lees’

removability had been proven by clear and convincing evidence

and recounted the multiple continuances in the case.                             Under the

circumstances, the IJ concluded that no additional continuance

was warranted and ordered the Lees removed, subject to voluntary

departure.

        The Lees filed a timely appeal and later filed a motion to

remand after Mrs. Lee’s immigrant visa was approved on May 20,

2008.     The Lees also moved to supplement the record.                          On August

27, 2009, the BIA issued an order denying the motion to remand

and dismissing the appeal.               The BIA concluded that neither Mr.

nor    Mrs.     Lee    was   eligible    to       adjust    status      under    8       U.S.C.

§ 1255(a) because both had failed to maintain continuously a

lawful status since entry into the United States.                            The BIA also

concluded that neither was eligible to adjust their status under

§ 1255(i).        That section permits an alien “physically present”

                                              5
in the United States to apply for adjustment of status if the

alien: (1) entered the United States without inspection; and (2)

is the beneficiary (including a spouse or child of the alien) of

a labor certificate filed prior to April 30, 2001.                                     8 U.S.C.

§ 1255(i).           Aliens      that       qualify       for     adjustment         under    this

section       are    termed      “grandfathered               aliens.”         See    8    C.F.R.

§ 1245.10(a).

       The BIA noted that Mr. Lee’s labor certificate, which was

filed prior to April 30, 2001, had been revoked and that the

Lees    had     provided         “no        legal       authority        to    support       their

contention” that the IJ was permitted to review that decision.

J.A.    at     16.        The        BIA    also       found    that     Mrs.    Lee’s       labor

certificate was filed subsequent to April 30, 2001, and that she

could not use her husband’s revoked labor certificate to support

her own adjustment of status.                           The BIA thus concluded that,

because      none    of   the        Lees   was        statutorily      eligible      to     adjust

their   status,       the       IJ    had    properly          denied    the    motion       for   a

continuance and there was no basis for remanding the case.



                                               II.

       In their petitions for review, the Lees claim that the BIA

abused its discretion in denying the continuance motion because

the BIA based its reasoning on an incorrect statement of law—

that    the    IJ     was     not      permitted         to     review    Mr.    Lee’s        labor

                                                   6
certificate.    We review the BIA’s legal determinations de novo,

“according appropriate deference” to its interpretation of the

Immigration    and   Nationality    Act   and   attendant   regulations.

Ogundipe v. Mukasey, 541 F.3d 257, 260 (4th Cir. 2008).         “Where,

as here, the BIA did not adopt the IJ’s opinion but offered its

own reasons for denying relief, we review the BIA’s order rather

than the IJ’s ruling.”     Ngarurih v. Ashcroft, 371 F.3d 182, 188

(4th Cir. 2004).     By regulation, an IJ “may grant a motion for

continuance for good cause shown.”         8 C.F.R. § 1003.29 (2010).

“Whether to grant a motion to continue deportation proceedings

is within the sound discretion of the IJ and is reviewed for

abuse of discretion only.”         Onyeme v. INS, 146 F.3d 227, 231

(4th Cir. 1998).

     In arguing that the BIA erred in conducting its review, the

Lees rely on 8 C.F.R. § 1245.10(i), which provides:

     (i) Denial, withdrawal, or revocation of the approval
     of   a  visa   petition   or   application   for   labor
     certification.   The denial, withdrawal, or revocation
     of the approval of a qualifying immigrant visa
     petition, or application for labor certification, that
     was properly filed on or before April 30, 2001, and
     that was approvable when filed, will not preclude its
     grandfathered   alien   (including   the   grandfathered
     alien’s family members) from seeking adjustment of
     status under section 245(i) of the Act on the basis of
     another approved visa petition, a diversity visa, or
     any other ground for adjustment of status under the
     Act, as appropriate.




                                    7
The phrase       “approvable         when       filed”      means       a    visa    petition      or

labor    certification        that        was    “properly         filed,      meritorious         in

fact, and non-frivolous.”                 8 C.F.R. § 1245.10(a)(3).

       According       to   the   Lees,         under       §    1245.10(i),         the    IJ    was

permitted to determine whether Mr. Lee’s labor certificate was

“approvable when filed” notwithstanding USCIS’s later revocation

of the certificate.              The Lees then contend that, if Mr. Lee’s

labor certificate was approvable when filed, Mrs. Lee’s visa

satisfies       the    requirement         that      the        grandfathered        alien       have

“another approved visa petition” and the Lees may be statutorily

eligible for an adjustment of status.                           See Matter of Legaspi, 25

I. & N. Dec. 328, 329 n.2 (BIA 2010); Memorandum from William R.

Yates, Assoc. Dir. for Operations, to USCIS officials (Mar. 9,

2005),     at        §§ 3D(1),       3E(2),          2005        WL     628644       (discussing

eligibility requirements under § 1255(i)).

       Under the facts of this case, we agree with the Lees that

the BIA erred in ruling that the IJ was not permitted to review

Mr. Lee’s labor certificate to determine if it was “approvable

when    filed.”        Indeed,       we    have      already          held    that    the    IJ    is

permitted       to     review     the       “totality            of     the     circumstances”

surrounding a labor certificate in making that determination.

Ogundipe,       541    F.3d     at    260-61.              See        also    Perez-Vargas         v.

Gonzales, 478 F.3d 191, 194 (4th Cir. 2007) (noting that IJs

“necessarily” have jurisdiction to make fact-finding “incidental

                                                 8
to the adjustment of status” determination).            In addition, the

BIA itself recently explained:

     It is clear that Immigration Judges do not have
     authority to decide whether a visa petition should be
     granted or revoked. See 8 C.F.R. § 204.1(e) (2010)[].
     However, despite these limitations, Immigration Judges
     do have jurisdiction over related issues.          For
     example, Immigration Judges may examine the underlying
     basis for a visa petition when such a determination
     bears on the alien’s admissibility.

Matter of Neto, 25 I. & N. Dec. 169, 174 (BIA 2010).                Thus,

although an IJ cannot grant or revoke a labor certificate in the

first instance, an IJ can look at the underlying validity of a

labor    certificate   to   the   extent   it   bears   on   the   removal

proceeding or an alien’s adjustment of status and the BIA was

incorrect in concluding otherwise in this case.

     Accordingly, the BIA erred in concluding that the Lees were

statutorily ineligible under § 1255(i) because the IJ was not

permitted to review Mr. Lee’s labor certificate, and we must

grant the petitions for review and remand the case for further

proceedings. 2   We express no opinion on whether Mr. Lee’s labor


     2
       At oral argument, the Government suggested two alternate
bases for denying the petitions for review.           First, the
Government argued that the IJ implicitly found that Mr. Lee’s
labor certificate was not approvable when filed because the IJ
noted “various inaccuracies” in the application.    J.A. at 261.
As the Government admits, however, the BIA did not adopt the
IJ’s opinion, and we are reviewing only the BIA’s decision.
Second, the Government suggested that, because USCIS has already
found that Hyeng’s certificate was fraudulent, the Lees would be
precluded from relitigating that fact before the IJ.          In
(Continued)
                                    9
certificate was “approvable when filed” or whether Mr. and Mrs.

Lee   will     ultimately      be   deemed        statutorily    eligible    for

adjustment of status.



                                     III.

      For    the   foregoing   reasons,      we    grant   the   petitions   for

review and remand the case to the BIA for further proceedings.



                                            PETITIONS GRANTED AND REMANDED




Ogundipe, 541 F.3d at 261, we noted that an alien was permitted
to show his application was “approvable when filed” “subject to
any applicable evidentiary and procedural rules.”         Again,
however, the BIA did not address this argument and we decline to
do so in the first instance in this case.



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