                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0219p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                   X
                                      Petitioners, -
 LJUPCO MATOVSKI; VIOLETA MATOVSKA,
                                                    -
                                                    -
                                                    -
                                                       No. 05-4534
          v.
                                                    ,
                                                     >
 ALBERTO GONZALES, Attorney General,                -
                                     Respondent. -
                                                    -
                                                    -
                                                    -
                                                   N
                         On Petition for Review of a Decision
                         of the Board of Immigration Appeals.
                           Nos. A78 652 588; A78 652 589.
                                        Argued: October 31, 2006
                                   Decided and Filed: June 15, 2007
         Before: MERRITT and BATCHELDER, Circuit Judges; GWIN, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, Troy, Michigan, for
Petitioners. Gjon Juncaj, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Marshal E. Hyman, Russell R. Abrutyn, MARSHAL E. HYMAN &
ASSOCIATES, Troy, Michigan, for Petitioners. Gjon Juncaj, Blair T. O’Connor, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    GWIN, D. J., delivered the opinion of the court in which, MERRITT, J., joined.
BATCHELDER, J. (pp. 17-19), delivered a separate dissenting opinion.




        *
          The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                       1
No. 05-4534           Matovski, et al. v. Gonzales                                             Page 2


                                        _________________
                                            OPINION
                                        _________________
       GWIN, District Judge.
                                            I. Overview
       With this case, Petitioners Ljupco Matovski and Violeta Matovska, his wife, (together, the
“Matovskis”) seek review of a decision of the Board of Immigration Appeals (“Board”) that found
them deportable. Petitioners say they qualify for employment-based permanent resident status. The
Respondent, United States Attorney General Alberto R. Gonzales, disagrees.
         The Matovskis are natives and citizens of Macedonia. On May 23, 1996, the United States
admitted the Matovskis as B-2 nonimmigrants visiting for pleasure (“B-2 visitor status”). The B-2
visitor status applies to aliens who have a residence in a foreign country that they have no intention
of abandoning and who are temporarily visiting the United States for pleasure. 8 U.S.C.
§ 1101(a)(15)(B). From May 23, 1996, through November 20, 2000, the Immigration and
Naturalization Service (“INS”) extended the Matovskis’ B-2 visitor status eight times, which
permitted them to remain in the United States.
       While in the United States under B-2 visitor status, Petitioner Matovski obtained an offer of
employment from Nikolic Industries, Inc. (“Nikolic Industries”). In support of its employment offer,
Nikolic Industries initiated a three-step status adjustment process on Matovski’s behalf, petitioning
for him to become a permanent resident of the United States. After the Department of Labor earlier
found there were insufficient qualified United States workers to perform the Nikolic work and the
INS found Matovski was qualified for the position, the INS denied the petitioners’ Application to
Register Permanent Residence or Adjust Status (“I-485”) on April 11, 2002, the final step in the
employment-based adjustment of status process. The INS denied the application after finding that
the Matovskis procured or sought to procure their B-2 visitor for pleasure visa through willful
misrepresentation of a material fact. 8 U.S.C. § 1182(a)(6)(C)(i).
        Upon denying Petitioners’ adjustment of status applications, the INS issued Notices to
Appear (“NTA”), which placed Petitioners in removal proceedings. At the removal proceedings,
Petitioners renewed their adjustment of status applications and argued that they were previously
authorized to remain in the United States while pursuing their adjustment of status applications. On
July 22, 2004, the Immigration Judge denied Petitioners’ applications for relief, finding the
Matovskis “present in violation of law” for remaining in the United States past the expiration of their
B-2 visitor status and, therefore, “deportable” under Section 1227(a)(1)(B) of Title 8 of the United
States Code.
        With regard to Petitioners’ applications for discretionary relief, the Immigration Judge found
Petitioners inadmissible for failing to establish that immigrant visas were immediately available to
them. Specifically, the Immigration Judge found that she lacked jurisdiction to determine the
portability of a valid I-140 petition pursuant to 8 U.S.C. § 1154(j). In addition, the Immigration
Judge found: (1) Petitioners were inadmissible because they willfully misrepresented a material fact
to obtain an immigration benefit by filing two extension of status applications containing false
information; (2) Petitioners were ineligible for adjustment of status as a matter of discretion; and
(3) Petitioners were ineligible for voluntary departure as a matter of discretion.
      The petitioners appealed the decision of the Immigration Judge to the Board of Immigration
Appeals. Separately, they filed a Request for Investigation against their former attorney, Donald
Dobkin, with the State of Michigan’s Attorney Grievance Commission. To some degree, Attorney
No. 05-4534           Matovski, et al. v. Gonzales                                            Page 3


Dobkin assisted the petitioners in falsely answering a question on their applications to renew their
status as B-2 visitors. On those renewal applications, the Matovskis’ claimed that they were not,
at the time of the renewal applications, otherwise seeking immigrant status. In actuality, the
Matovskis were also seeking employment-based adjustment of status at that time. B-2 visitor status
is designed for individuals who do not intend to abandon their foreign residence and who only intend
to visit the United States temporarily. Obviously, the Matovskis were pursuing immigrant status at
the times they completed these applications to extend their B-2 visitor status.
       On November 23, 2005, the Board of Immigration Appeals affirmed the Immigration Judge's
decision that the petitioners were removable, as well as the Immigration Judge's ruling that she
lacked jurisdiction over portability determinations pursuant to 8 U.S.C. § 1154(j). However, the
Board reversed the Immigration Judge's discretionary denial of the petitioners’ voluntary departure
applications. The Board made no determination regarding whether petitioners were inadmissible
because they willfully misrepresented a material fact to obtain an immigration benefit. The Board
also made no review of the Immigration Judge’s discretionary denial of the Matovskis’ application
to become residents.
        With this appeal, the petitioners request review of the following issues: (1) whether the
Immigration Judge had jurisdiction to apply the portability provisions of 8 U.S.C. § 1154(j) when
adjudicating the petitioners’ adjustment of status applications; (2) whether the Immigration Judge
violated the petitioners’ right to due process by finding the petitioners inadmissible for
misrepresentation although the Notice to Appear did not formally charge this ground of
inadmissibility; and (3) whether the Board’s failure to review the Immigration Judge's finding of
misrepresentation prevents review by this Court.
        Initially, this opinion briefly reviews the employment-based adjustment of status process and
the two stages of removal proceedings. Second, we examine the factual record and procedural
history of the instant case in further detail. We then address the Immigration Judge’s primary
rationale for denying the petitioners’ adjustment of status applications: the belief that she lacked
jurisdiction to make portability determinations under 8 U.S.C. § 1154(j). Finally, we address the
Immigration Judge’s finding of inadmissibility for misrepresentation of a material fact and her
discretionary denial of Petitioners’ applications, both of which the Board declined to review on the
merits.
       For the following reasons, we AFFIRM IN PART and REVERSE IN PART the Board’s
decision. We REMAND this case to the Immigration Judge for (1) initial determination whether
immigrant visas were immediately available when Petitioners originally filed their applications for
adjustment of status; and (2) adjudication of Petitioners’ applications for adjustment of status in
compliance with 8 U.S.C. § 1154(j).
                      II. Adjustment of Status and Removal Proceedings
A.     Employment-Based Adjustment of Status
        For an alien to adjust their status to that of a lawful permanent resident based upon a
potential employment opportunity, the alien must successfully complete a three-step process. The
alien’s potential employer initiates the first two stages. First, the employer files an ETA-750,
Application for Alien Employment Certification, with the Department of Labor. The Department
of Labor grants certification where it can be shown that there are insufficient qualified U.S. workers
available and willing to perform the work at the prevailing wage paid for the occupation in the area
of intended employment. 8 U.S.C. § 1153(b)(3).
       If the Department of Labor approves the Application for Alien Employment Certification,
the employer may then file an I-140, Petition for Alien Worker with the INS. The INS examines
No. 05-4534            Matovski, et al. v. Gonzales                                               Page 4


evidence filed with the petition to decide whether the alien is eligible for the benefit requested. For
example, the INS would determine whether an alien (1) has a labor certification; and (2) meets the
minimum requirement of two years of specialized training or experience needed for the alien to
qualify as a “skilled worker.” 8 U.S.C. § 1153(b)(3)(A)(i).
        If the INS approves the I-140, the alien files an I-485, Application to Register Permanent
Residence or Adjust Status, the third and final stage of the employment-based adjustment of status
process. 8 U.S.C. § 1255(a) establishes three requirements for an alien to become eligible for a
status adjustment to an alien lawfully admitted for permanent residence: “(1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant visa is immediately
available to him at the time his application is filed.” If the alien satisfies each of these requirements,
the INS will approve the I-485 and the alien will become a lawful permanent resident of the United
States.
B.      Removal Proceedings
        If the INS denies the I-485, the agency may initiate removal proceedings against the alien
by issuing a Notice to Appear. The Notice to Appear must contain “the charges against the alien
and the statutory provisions alleged to have been violated.” 8 U.S.C. § 1229(a)(1)(D). See also 8
U.S.C. § 1229a(a)(2) (“An alien placed in proceedings under this section may be charged with any
applicable ground of inadmissibility . . . or deportability.”). Removal proceedings against an alien
are divided into two phases: (1) determination of the alien’s removability; and (2) consideration of
applications for discretionary relief. The due process accorded to the first stage of removal
proceedings is significantly different from that given in the second stage.
        In the first stage of a removal proceeding, “the Service has the burden of establishing by
clear and convincing evidence that, in the case of an alien who has been admitted to the United
States, the alien is deportable.” 8 U.S.C. § 1229a(c)(3)(A). In the second stage, petitioners may
raise applications for discretionary relief for which they bear the burden of proof. Potential grounds
for discretionary relief include “(i) adjustment of status, 8 U.S.C.S. § 1255; (ii) cancellation of
removal, 8 U.S.C.S. § 1229b; (iii) asylum, 8 U.S.C.S. § 1158; [(iv)] voluntary departure, 8 U.S.C.S.
§ 1229c; and [(v)] registry, 8 U.S.C.S. § 1259.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 698
n.13 (6th Cir. 2002).
         If the Immigration Judge finds deportability and denies all applications for discretionary
relief, petitioners may appeal these decisions to the Board of Immigration Appeals. Thereafter,
petitioners may petition this Court to review decisions of the Board.
                        III. Factual Background and Procedural History
A.      Adjustment of Status Process
        Petitioners Ljupco Matovski and Violeta Matovska are natives and citizens of Macedonia
who were married on February 10, 1995. The petitioners have two children who are citizens of the
United States. On May 23, 1996, the United States admitted the petitioners to attend the wedding
of a family member as visiting for pleasure B-2 nonimmigrants. Petitioners allege that they initially
intended to return to Macedonia after the wedding. However, Mr. Matovski identified a company,
Nikolic Industries, who wished to employ him as a machine builder and sponsor him for permanent
residency.
        The petitioners and Nikolic Industries retained Attorney Donald Dobkin, to help them with
the three-step employment-based adjustment of status process. On October 30, 1996, Nikolic
No. 05-4534           Matovski, et al. v. Gonzales                                             Page 5


Industries filed an ETA-750 on behalf of Mr. Matovski with the Department of Labor, the first step
in obtaining an adjustment of status.
        Although Nikolic Industries filed this Application for Alien Employment Certification on
their behalf, the petitioners continued their presence in the United States under the previously issued
B-2 visitor for pleasure visa. By its nature, the B-2 visitor admission is inconsistent with efforts to
immigrate. The B-2 visa requires the alien have “a residence in a foreign country which he has no
intention of abandoning.” 8 U.S.C. § 1101(a)(15)(B).
       The petitioners’ initial B-2 visitor for pleasure admission expired on November 22, 1996.
On November 5, 1996, the petitioners filed a B-2 Extension Application. The INS granted the
extension for an additional six months. Subsequently, the petitioners filed seven additional B-2
Extension Applications that the INS granted. As a result of these extensions, the petitioners
maintained their B-2 nonimmigrant visitor for pleasure status until November 20, 2000.
        Petitioners allege that during the adjustment of status process, Attorney Dobkin repeatedly
told them that immigration law permitted the filing of successive B-2 Visitor Extension
Applications. In their final two B-2 Visitor Extension Applications, Petitioners failed to disclose
that Nikolic Industries had filed an employment-based adjustment of status petition on Matovski’s
behalf.
         On June 26, 1999, nearly three years after Nikolic Industries filed the ETA-750, the
Department of Labor approved the Application for Employment Certification, finding that no
qualified American workers were available for the position being offered. On August 9, 1999,
Nikolic Industries filed an I-140 form on behalf of the petitioner, the second step in obtaining an
employment-based adjustment of status to permit residency. The INS approved the I-140 petition.
On September 7, 2000, while still maintaining B-2 visitor nonimmigrant status, the petitioners
initiated the third and final step of the employment-based application for permanent residency by
filing I-485 forms with the INS.
       As an accompanying document to the I-485 form, Matovski filed an Application for
Employment Authorization (“I-765"), signed on August 23, 2000. Matovski also submitted an
August 21, 2000 letter from Nikolic Industries confirming its offer of employment to work as a
machine builder for $16.40 per hour. The INS granted the I-765 on November 2, 2000. At that
time, Matovski was legally permitted to work for his sponsoring employer. Nevertheless, it is
unclear from the record whether Matovski ever actually worked for Nikolic Industries.
        Approximately three weeks after the I-765 application was granted, Mr. Bolgoja Gjerofski,
the owner and operator of Bob G. Turning and Milling, Inc. (“Bob G.”), offered Petitioner Matovski
full-time, permanent employment as a machine builder at the wage of $19.00 per hour. These
conditions allegedly represented the same occupational classification and wage as Petitioner
Matovski’s previous offer of employment with Nikolic Industries. On November 27, 2000,
Petitioner began working for Bob G. and continued this employment until March 2002.
B.     INS Denial of Adjustment of Status Application
        On April 11, 2002, the INS denied the petitioners’ I-485 applications for permanent
residency. 8 U.S.C. § 1255(a) establishes three requirements for an alien who was admitted to the
United States to become eligible for permanent residence: “(1) the alien makes an application for
such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is immediately available to him at the time
his application is filed.” As described below, the INS denied the applications after finding that the
Matovskis procured or sought to procure their B-2 visitor for pleasure visas through willful
misrepresentation of a material fact.
No. 05-4534           Matovski, et al. v. Gonzales                                            Page 6


        8 U.S.C. § 1182(a)(6)(C)(i) precludes as inadmissible “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa,
other documentation, or admission into the United States or other benefit provided under this Act.”
The INS determined that Petitioners were no longer admissible to the United States because they
had “falsely claimed that an immigration petition had not been filed on [their] behalf when in fact
one had been.” Petitioners had filed their final two B-2 Extension Applications on November 29,
1999 and May 23, 2000, after Nikolic Industries had filed an I-140 petition with the INS on
Matovski’s behalf. The INS also found that an accurate response would have adversely affected the
petitioners’ eligibility for an extension of nonimmigrant status.
        Additionally, the INS noted that Nikolic Industries filed an ETA-750 form (initiating the
employment-based adjustment of status process) on October 30, 1996. Although the Matovskis
were thus seeking immigrant status at that time, the first four B-2 Extension Applications filed
subsequently by the petitioners falsely characterized their stay as “temporary.” Likewise, at least
one B-2 Extension Application seeking a visa to visit for pleasure expressed the petitioner’s
intention to depart the United States at the conclusion of his stay. As such, the INS highlighted,
“You have consistently mischaracterized the facts surrounding your stay within the United States”
because “[y]our intention to apply for permanent resident status within the United States is
completely inconsistent with your claims that it was your intention to remain in the United States
only temporarily.” Finally, the INS advised the petitioner that “any employment authorization and
travel authorization issued based on your having a pending application to register permanent
residence or adjust status also expire as a result of this decision.”
C.     Removal Proceedings
        On April 11, 2002, the INS also initiated removal proceedings against the petitioners by
filing Notices to Appear. The Notices to Appear stated the petitioners had “remained in the United
States beyond November 20, 2000 without authorization from the Immigration and Naturalization
Service.” As such, the INS charged the petitioners with being subject to removal from the United
States pursuant to “Section 237(a)(1)(B) of the Immigration and Nationality Act . . . in that after
admission as a nonimmigrant under section 101(a)(15) of the Act you have remained in the United
States for a time longer than permitted.” 8 U.S.C. § 1227(a)(1)(B). The Notices to Appear did not
specifically charge the petitioners with being inadmissible as aliens who sought to obtain an
immigration benefit through misrepresentation.
        During initial removal proceedings before an Immigration Judge, the petitioners conceded
their removability as charged, but said they should be permitted to remain in the United States while
pursuing their efforts to register as permanent residents. They also renewed their adjustment of
status applications and applied for the alternative relief of voluntary departure. However, as their
applications were denied on April 11, 2002, the petitioners conceded that from that date forward
they remained in the country without authorization. The Immigration Judge later noted in her oral
decision that the petitioners “neither admitted or denied that they were present in the United States
beyond November 28, 2000 without authorization from the Immigration and Naturalization
Service.”
       On June 29, 2004, the Immigration Judge held a merits hearing. In support of their renewed
adjustment of status applications, the petitioners relied upon a provision from the American
Competitiveness in the Twenty-First Century Act of 2000:
       A petition under subsection (a)(1)(D) for an individual whose application for
       adjustment of status pursuant to section 245 [8 USCS § 1255] has been filed and
       remained unadjudicated for 180 days or more shall remain valid with respect to a
No. 05-4534              Matovski, et al. v. Gonzales                                                      Page 7


        new job if the individual changes jobs or employers if the new job is in the same or
        a similar occupational classification as the job for which the petition was filed.
8 U.S.C. § 1154(j). Under this provision, the petitioners argued that Matovski’s original I-140
petition remained valid despite his change of employers. In addition, the petitioners showed1 that
on September 16, 2003, they had advised the Department of Homeland Security (“DHS”) that
Matovski had “changed employers” and intended to rely upon 8 U.S.C. § 1154(j) in order to
maintain a valid I-140 petition.
D.      Decision of the Immigration Judge
        On July 22, 2004, the Immigration Judge first found that the petitioners’ removability had
been established by clear and convincing evidence as required by 8 U.S.C. § 1229a.2 Petitioners
then raised two applications for discretionary relief, both of which the Immigration Judge denied.
        The Immigration Judge denied the petitioners’ renewed applications for permanent residence,
Petitioners’ first application for discretionary relief, for three reasons. First, the Immigration Judge
denied Petitioners’ application because the petitioners failed to establish that an immigrant visa was
immediately available to them. In reaching this decision, she rejected the petitioners’ argument that
immigration visas are immediately available through application of the 8 U.S.C. 1154(j) portability
provision. Specifically, she held that she lacked jurisdiction to apply 8 U.S.C. § 1154(j) because the
Attorney General “has not issued regulations which would allow this Court the authority to
adjudicate the issue of portability . . . .”
       Second, the Immigration Judge denied the petitioners’ application for discretionary relief
because she found the petitioners inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) “for
misrepresenting facts material to a determination of his eligibility to receive an extension of
nonimmigrant status.” The petitioners had filed two B-2 Extension Applications containing false
information.
        Third, the Immigration Judge denied the petitioners’ application for discretionary relief as
a matter of discretion due to the “pattern of immigration fraud perpetrated over a period of four
years.”
        The Immigration Judge also denied the petitioners’ applications for voluntary departure,
Petitioners’ second application for discretionary relief, as a matter of discretion. She then ordered
that the petitioners be “removed and deported from the United States to Macedonia on the charges
contained within the Notice to Appear.”
E.      Petitioners’ Appeal to the Board of Immigration Appeals
       On August 5, 2004, the petitioners appealed the decision of the Immigration Judge to the
Board of Immigration Appeals, claiming: (1) the Immigration Judge erred in determining that she
lacked jurisdiction to address the applicability of portability provisions contained within 8 U.S.C.
§ 1154(j); (2) the Immigration Judge exceeded her authority and deprived the petitioners of due


        1
            On March 1, 2003, the INS ceased to exist as an independent agency within the Department of Justice, and
its functions were transferred to the newly formed Department of Homeland Security. Homeland Security Act of 2002,
Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (Nov. 25, 2002).
        2
           The Immigration Judge found Petitioners removable because (1) their B-2 visitor visas had expired; and
(2) the Department of Homeland Security had denied the petitioners’ I-485 applications for permanent residence.
Petitioners conceded their removability upon these facts.
No. 05-4534           Matovski, et al. v. Gonzales                                            Page 8


process by finding the petitioners inadmissible for willful misrepresentation under 8 U.S.C.
§ 1182(a)(6)(C)(i) because this ground was not charged on the Notice to Appear; (3) the
Immigration Judge erred in concluding that the petitioners knowingly misrepresented a material fact;
and (4) the petitioners merited a favorable exercise of discretion with respect to their applications
for relief.
        On November 23, 2005, the Appeals Board sustained, in part, and dismissed, in part, the
petitioners’ appeal. The Board affirmed the Immigration Judge's ruling that she lacked jurisdiction
to address the applicability of portability provisions contained within 8 U.S.C. § 1154(j). Likewise,
the Board held that the Immigration Judge's consideration of the petitioners’ inadmissibility under
8 U.S.C. § 1182(a)(6)(C)(i) did not violate the petitioners’ due process rights because the
Immigration Judge could rule on any ground for exclusion that arose during the course of a hearing
so long as the petitioners were given a reasonable opportunity to respond to the issue.
        After ruling on these issues, the Board of Immigration Appeals never reached the merits of
Petitioners’ claim that the evidence failed to show they knowingly misrepresented a material fact.
Similarly, the Board did not address the Immigration Judge's discretionary denial of the petitioners’
adjustment of status applications. However, the Board did reverse the Immigration Judge's
discretionary denial of the petitioners’ applications for voluntary departure.
                                       IV. Legal Standards
        We review Board of Immigration Appeals rulings on legal issues concerning the
requirements of the immigration statute de novo. See Castellano-Chacon v. INS, 341 F.3d 533, 552-
53 (6th Cir. 2003). Likewise, we give deference to an agency’s reasonable interpretation of its
statute and underlying regulations. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Finally, we
may consider only those issues previously addressed by the Board. INS v. Ventura, 537 U.S. 12, 15-
17 (2002).
                                            V. Analysis
        As described in greater detail above, during Petitioners’ removal proceedings the
Immigration Judge denied the petitioners’ renewed adjustment of status applications on three
grounds. First, the Immigration Judge ruled that she lacked jurisdiction to adjudicate the portability
of Petitioner’s I-140 petition under 8 U.S.C. § 1154(j). Additionally, the Immigration Judge held
that petitioners were inadmissible (1) because they willfully misrepresented a material fact to obtain
an immigration benefit; and (2) as a matter of discretion.
        With this appeal, Petitioners say that the Board of Immigration Appeals erred in upholding
the Immigration Judge’s denial of their renewed adjustment of status applications. Specifically, the
petitioners first argue that the Board erred in determining that an Immigration Judge does not have
jurisdiction to adjudicate portability determinations under 8 U.S.C. § 1154(j). Second, Petitioners
renew their argument, which the Board rejected, that the Immigration Judge deprived them of due
process by finding the petitioners inadmissible for willful misrepresentation under 8 U.S.C.
§ 1182(a)(6)(C)(i) despite the fact that this ground was not charged on the Notice to Appear.
Finally, the petitioners argue that this Court may not review the Immigration Judge’s two remaining
bases for denying their applications on the merits because the Board did not address them. We
consider each of the petitioners’ arguments below.
A.     Jurisdiction to Adjudicate Portability Determinations Under 8 U.S.C. § 1154(j)
        Petitioners first allege that the Board erred when it ruled that the Immigration Judge lacked
jurisdiction to adjudicate the portability of Petitioner’s I-140 form under 8 U.S.C. § 1154(j) in a
removal proceeding. Respondent argues that Immigration Judges do not have authority to make
No. 05-4534           Matovski, et al. v. Gonzales                                            Page 9


such portability determinations because the Attorney General never granted the Immigration Judges
such power. Because we find the Petitioners’ position more persuasive, the Court REVERSES this
ruling and REMANDS the adjudication of Petitioners’ renewed adjustment of status applications
to the Immigration Judge for further proceedings in conjunction with proper application of 8 U.S.C.
§ 1154(j).
1.     Applicability of 8 C.F.R. § 245.1(g)
         The Immigration Judge primarily based her denial of Petitioners’ renewed adjustment of
status applications upon her decision that she lacked jurisdiction to adjudicate the portability of
Petitioner’s I-140 petition under 8 U.S.C. § 1154(j). Without a valid I-140 petition on their behalf,
the petitioners could not demonstrate that immigrant visas were immediately available to them at
that time. If 8 C.F.R. § 245.2(a)(5)(ii) is applicable here, however, it may not have been essential
for the Immigration Judge to determine whether immigrant visas were immediately available to the
petitioners during the removal proceedings.
         In addition to providing aliens with the right to renew applications for adjustment of status
in removal proceedings, 8 C.F.R. § 245.2(a)(5)(ii) also states, “[a]t the time of renewal of the
application, an applicant does not need to meet the statutory requirement of section 245(c) of the
Act, or § 245.1(g), if, in fact, those requirements were met at the time the renewed application was
initially filed with the director.” Therefore, if immigrant visas were immediately available to the
petitioners when they originally filed their I-485 applications for permanent residency, the
petitioners were not required to show that immigrant visas were immediately available at the time
they renewed their applications. Unfortunately, it is not clear whether the petitioners qualified for
immigrant visas at the time they originally filed their I-485 applications. Numerous factors could
prevent the availability of an immigrant visa. For example, the priority date for granting
employment-based adjustment of status applications to skilled workers such as Matovski may not
have passed by the time the petitioners filed their I-485 applications. See 8 C.F.R. § 245.1(g)
         Since the applicability of 8 C.F.R. § 245.1(g) could have made a determination regarding
portability under 8 U.S.C. § 1154(j) unnecessary, the Immigration Judge should have decided
whether immigration visas were otherwise available to the petitioners when they originally filed
their adjustment of status applications before she addressed the applicability of 8 U.S.C. § 1154(j).
In the instant case, there is no evidence suggesting that the Immigration Judge ever considered, let
alone ruled on the issue of whether immigrant visas were immediately available to the petitioners
at the time they originally filed their adjustment of status applications. Therefore, we REMAND
the case to the Immigration Judge for further proceedings to develop the record in order to make this
determination.
2.     Jurisdiction to Adjudicate Portability Determinations Under 8 U.S.C. § 1154(j)
       Assuming that 8 C.F.R. § 245.1(g) is not applicable, the Immigration Judge must then decide
whether immigrant visas are available to the petitioners in removal proceedings. The Immigration
Judge previously decided, and the Board affirmed, that she lacked jurisdiction to make such an
adjudication in accordance with 8 U.S.C. § 1154(j). We consider that decision below.
        Together with family-sponsored immigration and diversity immigration, immigration
provisions give special treatment to employment-based immigrants. 8 U.S.C. § 1182(a)(5).
Applications under these provisions require that “the Secretary of Labor has determined . . . that
there are not sufficient workers who are able, willing, qualified . . . and available at the time of
application . . . and the employment of such alien will not adversely affect the wages and working
conditions of workers in the United States similarly employed.” Id. Because these determinations
regarding the availability of American workers require significant time, Congress provided some
flexibility to applicants awaiting determination. Congress enacted 8 U.S.C. § 1154(j) as part of the
No. 05-4534               Matovski, et al. v. Gonzales                                                         Page 10


American Competitiveness in the Twenty-First Century Act of 2000, Pub. L. No. 106-313 to provide
“[j]ob flexibility for long delayed applicants for adjustment of status to permanent residence.”
         Although Congress enacted this legislation six years ago, the DHS and Board of Immigration
Appeals have failed to issue implementing regulations governing portability determinations of I-140
petitions under this provision. As a result of the significant delay in establishing formal regulations,
aliens such as the petitioners who have renewed employment-based applications for adjustment of
status in removal proceedings lack any procedure to demonstrate that their new employment satisfies
the portability provisions of 8 U.S.C. § 1154(j).
       Regardless of this delay, Respondent maintains that the Immigration Judge had “no authority
to apply section 204(j) of the INA to an adjustment of status application.” On appeal, the Board
of Immigration Appeals agreed that the Immigration Judge’s jurisdiction is limited to that delegated
by the Attorney General. See Matter of Perez-Vargas, 23 I. & N. Dec. 829, 831 (BIA 2005)
(“Immigration Judges have no authority to make such adjudications because the regulations give
them no jurisdiction over visa petitions.”). In addition, the BIA noted “[i]n light of general
regulatory requirements that an employment-based visa petition must be filed with the Service
Center having appropriate jurisdiction, we find no error in the Immigration Judge’s determination
above.” See 8 C.F.R. § 204.5(b). We disagree for the following reasons.
a.       Petitioners Complied with Statutory Regulations and Informal Guidance
        As an initial matter, we first note that the petitioners have complied with both the statutory
regulations and informal guidance that exist regarding the adjudication of applications for
adjustment of status during removal proceedings. Applications for discretionary relief during
removal proceedings are governed by 8 C.F.R. § 245.2(a)(5)(ii), which states “No appeal lies from
the denial of an application by the director, but the applicant, if not an arriving alien, retains the right
to renew his or her application in [removal] proceedings.” Therefore, while primary authority over
adjustment of status applications rests with the INS, 8 C.F.R. § 245.2(a)(5)(ii) authorizes
Immigration Judges to adjudicate such applications upon their renewal in removal proceedings. As
such, the petitioners satisfied the jurisdictional regulations governing the renewal of their
applications for adjustment of status.
         Additionally, the petitioners have complied with the government's informal guidance
regarding 8 U.S.C. § 1154(j). That government guidance suggests an I-140 Petition for Alien
Worker, such as that filed on behalf of the petitioners by Nikolic Industries, remains valid once a
filed I-485 Application to Register Permanent Residence or Adjust Status remains unadjudicated for
longer than 180 days, irrespective of whether the employer withdraws their initial I-140 petition.
The American Competitiveness in the Twenty-First Century Act “provides that any underlying
labor certification also remains valid if the conditions of § 106(c) [8 U.S.C. § 1154(j)] are satisfied.”
8 U.S.C. § 1154(j) contains no language stating that the provision no longer applies if the INS
initially denies a petitioner’s I-485 adjustment of status application.
       The petitioners also complied with existing informal government guidance by submitting
evidence of a new qualifying offer of employment to the DHS after Nikolic Industries withdrew its
I-140 petition.3 Specifically, on September 16, 2003, Matovski and his new employer, Bob G.,


         3
            Informal government guidance provides that in the event of an employer’s withdrawal of its I-140 petition,
“It is expected that the alien will have submitted evidence to the office having jurisdiction over the pending Form I-485
that the new offer of employment is in the same or similar occupational classification as the offer of employment for
which the petition was filed.” If such a withdrawal occurs and the alien fails to submit evidence of a new qualifying
offer of employment, “A Notice of Intent to Deny will be issued on the I-485 to determine if the alien has a new offer
of employment in the same or similar occupation.” Only if the applicant fails to adequately respond to the Notice of
No. 05-4534                Matovski, et al. v. Gonzales                                                            Page 11


notified the DHS in writing of Matovski’s change in employment. This letter described the title and
salary of Matovski’s new position. At no point in time has the DHS ever requested further
information from Matovski or Bob G. regarding this offer of employment. Likewise, the DHS never
issued a Notice of Intent to Deny with regard to Matovski’s I-485 Application for Adjustment of
Status. Finally, unlike the Immigration Judge, the DHS has never questioned Petitioners’ reliance
upon Matovski’s previously approved I-140 Petition for Alien Worker. Nonetheless, the DHS has
never made a determination of the validity of Matovski’s visa petition consistent with 8 U.S.C.
§ 1154(j).
        The BIA stressed in Perez-Vargas, “[when] the respondent has asserted that he remains
eligible for labor certification through his new employment, it is incumbent upon the DHS to
determine whether the respondent's visa petition remains valid pursuant to section 204(j) of the Act.”
23 I. & N. Dec. at 833 n.7. We agree, but 4note that in this case the DHS has now declined to make
such a determination for over three years.
        The petitioners have sought to comply with the guidance promulgated by the government.
However, the Board of Immigration Appeals found that the petitioners could not invoke the
portability provisions of 8 U.S.C. § 1154(j) solely because removal proceedings had been initiated.
By affirming that an Immigration Judge lacks jurisdiction to make such portability determinations,
the Board effectively eliminated Petitioners’ capacity to avail themselves of 8 U.S.C. § 1154(j).
This holding contradicts Congress’ intent in providing protections for long delayed applicants for
adjustment of status with valid employment opportunities.
b.       No Authority Expressly Forbids an Immigration Judge from Adjudicating Portability
         Determinations
        Respondent also states that Immigration Judges are precluded from adjudicating portability
determinations because the Attorney General has not delegated such authority. Respondent relies
upon 8 C.F.R. § 1003.10, which provides that “Immigration Judges, as defined in 8 C.F.R. part 1,
shall exercise the powers and duties in this chapter regarding the conduct of exclusion, deportation,
removal, and asylum proceedings and such other proceedings which the Attorney General may
assign them to conduct.” Respondent argues that the Attorney General has refrained from issuing
formal regulations that give Immigration Judges authority to adjudicate portability determinations
under 8 U.S.C. § 1154(j).
        While no regulation specifically gives Immigration Judges the authority to adjudicate
portability, no regulation expressly forbids their adjudication of such matters. More generally,


Intent to Deny may the DHS deny the I-485 Application for Adjustment of Status. Here, the record indicates that
although the petitioners never received a Notice of Intent to Deny from DHS, they nonetheless submitted the required
evidence of a new offer of employment.
         4
            We are aware of the recent ruling of the District Court for the District of Columbia in Mawalla v. Chertoff,
2007 U.S. Dist. LEXIS 284 (D.D.C. 2007). The Mawalla Court held with regard to the applicability of 8 U.S.C.
§ 1154(j), “the key date in determining eligibility for the benefit of AC21 is the date on which the alien changes jobs (i.e.,
the date on which he takes an action that could otherwise make him ineligible for adjustment of status). If the job change
occurs 180 days or more after the date on which the alien filed an application for adjustment of status, the alien's
previously approved I-140 application will remain in effect with respect to the new job . . . The question is not how long
the I-140 petition was on file but whether the I-485 application for adjustment was pending for 180 days or more ‘when
[the] alien change[d] jobs.’” Id. at *15-16 (citation omitted).
           Whether Matovski changed jobs less than 180 days prior to filing his I-485 application may impact Petitioners’
capacity to avail themselves of the portability provisions of 8 U.S.C. § 1154(j). However, the Immigration Judge
originally held that she lacked jurisdiction to decide whether 8 U.S.C. § 1154(j) was applicable. In accordance with this
opinion, the applicability of 8 U.S.C. § 1154(j) must first be addressed by the Immigration Judge. As such, this issue
is not properly before this Court at this time.
No. 05-4534               Matovski, et al. v. Gonzales                                                         Page 12


8 C.F.R. § 245.2(a)(5)(ii) gives Immigration Judges the authority to adjudicate renewed applications
for adjustment of status in the context of removal proceedings.   8 U.S.C. § 1154(j) does not exclude
aliens in removal proceedings from its protections.5 Likewise, the language found within 8 U.S.C.
§ 1154(j), “shall remain valid,” is mandatory not discretionary. In seeking to provide job flexibility
for long delayed applicants, Congress never distinguished between aliens filing an initial application
with the DHS and those aliens renewing their applications in removal proceedings before an
Immigration Judge. Instead, Congress sought to ensure that bureaucratic delays would not eliminate
the possibility of adjustment of status for all aliens with legitimate employment opportunities.
        Case law does not support Respondent’s argument. For example, in Krishnamoorthy v.
Ridge, 2003 WL 21204051 (N.D. Ill. May 19, 2003), the court explicitly rejected the government’s
determination that the petitioner’s I-485 application should be rejected because “the ‘portability
under Section 106(c) or the American Competitiveness in the 21st Century Act,’ claimed by
Krishnamoorthy, could not, ‘in the absence of regulatory guidance or instructive policy memoranda,
be applied in the instant matter.’” Id. Specifically, in granting a mandamus petition, the
Krishnamoorthy court noted that “Courts in this district have already held that ‘a petitioner has a
right to adjudication of qqq [an] adjustment of status application[ ] and that INS has a corresponding
duty to adjudicate these applications.’” Id. at *9 (citing Setharatsomphou v. Reno, 1999 WL
755292, at *4 (N.D. Ill. Sept. 27, 1999)). Indeed, the court in Krishnamoorthy held that “[t]his duty
is mandatory not discretionary . . .” and that “...to be meaningful, INS must adjudicate applications
in accordance with governing statutes, including § 204(j). Therefore, INS has a clear duty to
adjudicate Krishnamoorthy's application in accordance with § 204(j).” Krishnamoorthy, 2003 WL
21204051, at *9.
c.       Scope of Jurisdiction Conferred by 8 C.F.R. § 245.1(c)(8)
        Finally, the petitioners cite four cases from our sister circuits to support their argument that
Immigration Judges and the Board of Immigration Appeals may not narrowly construe their
jurisdiction when Congress intended protection for the class. See Scheerer v. Gonzales, 445 F.3d
1311 (11th Cir. 2006); Bona v. Gonzales, 425 F.3d 663, 668-70 (9th Cir. 2005); Zheng v. Gonzales,
422 F.3d 98, 119-120 (3d Cir. 2005); Succar v. Gonzales, 394 F.3d 8, 29 (1st Cir. 2005). These
cases examine the application of 8 C.F.R. § 245.1(c)(8) by Immigration Judges. That section
excludes from eligibility to apply for permanent residency “Any alien who seeks to adjust status
based upon a marriage which occurred on or after November 10, 1986, and while the alien was in
exclusion, deportation, or removal proceedings.” This provision directly contradicted 8 U.S.C.
§ 1255(a), which granted eligibility to pursue adjustment of status to any alien who was inspected,
admitted or paroled into the United States.
        Employing traditional Chevron two-step analysis, two circuits invalidated the regulation
under Chevron’s first step, finding that Congress had spoken to the precise question at issue and the
regulation was contrary to Congress’ clearly expressed intent. See Bona, 425 F.3d at 668-70;
Succar, 394 F.3d at 29. The Third and Eleventh Circuits invalidated the regulation under Chevron’s
second step, holding that the regulation was not based on a permissible construction of the statute
because it was inconsistent with the eligibility standards established in 8 U.S.C. § 1255(a). See
Scheerer, 445 F.3d at 1320; Zheng, 422 F.3d at 119-120.



         5
            We are also aware of the recent ruling of our sister circuit in Perez-Vargas v. Gonzales, 478 F.3d 191, 194
(4th Cir. 2007). In reversing the BIA, the Court held “[b]ecause an IJ has ‘exclusive jurisdiction’ to adjudicate an
application for adjustment of status, he necessarily has jurisdiction to make a § 204(j) determination, which is simply
an act of factfinding incidental to the adjustment of status process.” Id. (citing 8 C.F.R. § 1245.2(a)(1)). In addition,
the Court found, “By its terms, § 204(j) does not distinguish between those aliens whose adjustment applications are
pending before DHS and those aliens whose adjustment applications are required to be filed with an IJ.” Id. at 195.
No. 05-4534           Matovski, et al. v. Gonzales                                           Page 13


        Petitioners analogize that the Board is similarly excluding from eligibility for permanent
residence the class of aliens needing to change sponsoring employers because of administrative
delays in processing their applications. Congress understood how to limit the categories of aliens
eligible to apply for adjustment of status, and it explicitly excluded several categories of otherwise
eligible aliens. 8 U.S.C. § 1255. See Bona, 425 F.3d at 669. We should not defer to the discretion
of the Board when the Board contradicts the expressed intent of Congress to protect the job
flexibility of long-delayed applicants.
        Interestingly, while Respondent claims that Immigration Judges lack jurisdiction over
portability determinations because the Attorney General has yet to delegate such authority, the
Respondent fails to explain what authority permits Immigration Judges to ignore valid I-140
petitions. The government has issued informal guidance establishing procedures for the DHS to
revoke an I-140 petition upon receipt of an inadequate response to a Notice of Intent to Deny.
However, no formal or informal regulation authorizes an Immigration Judge to refuse
implementation of 8 U.S.C. § 1154(j) in the absence of such a revocation.
        For all the reasons discussed above, the Court REVERSES the Board of Immigration
Appeals’ ruling affirming that Immigration Judges lack jurisdiction over 8 U.S.C. § 1154(j)
portability determinations and REMANDS the adjudication of Petitioners’ renewed adjustment of
status applications to the Immigration Judge for further proceedings in conjunction with proper
application of 8 U.S.C. § 1154(j).
B.     Due Process Violation
        Petitioners also allege that the Board of Immigration Appeals erred when it found that the
Immigration Judge had authority to consider whether Petitioners are inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i) for willfully misrepresenting a material fact. Petitioners contend that their right
to due process was violated by the consideration of a ground of inadmissibility that was not charged
within the Notice to Appear. With this argument, the petitioners have mistakenly interchanged the
due process owed at two different stages of a removal proceeding: (1) determination of the
petitioners’ removability; and (2) adjudication of petitioners’ applications for discretionary relief.
1.     Stage One: Determination of Removability
       The first stage of the Matovskis’ removal proceeding required the Immigration Judge to
determine whether their removability had been established by clear and convincing evidence as
required by 8 U.S.C. § 1229a. The petitioners’ Notices to Appear stated the Matovskis were subject
to removal from the United States pursuant to 8 U.S.C. § 1227(a)(1)(C)(i) “in that after admission
as a nonimmigrant . . . you have remained in the United States for a time longer than permitted.”
        The petitioners admitted the first four factual allegations contained within the Notice to
Appear that detailed their admission and subsequent extension of admission as nonimmigrant
visitors for pleasure. The petitioners neither admitted nor denied the fifth factual allegation
contained within the Notice to Appear: “You remained in the United States beyond November 20,
2000 without authorization from the Immigration and Naturalization Service.” However, the
petitioners failed to present any evidence that any further extensions had been granted. Finally, the
petitioners “conceded that they are subject to removal under the provisions of Section 237(a)(1)(B)
of the Act in that after admission as non-immigrants under Section 101(a)(15) of the Act they have
remained longer than permitted.” 8 U.S.C. § 1227(a)(1)(C)(i) provided the sole ground for
Petitioners’ removability: remaining in the United States longer than permitted after admission as
a nonimmigrant visitor for pleasure.
      The petitioners correctly note that due process requires that a Notice to Appear contain all
grounds for removability. 8 U.S.C. § 1229(a)(1)(D). See also Detroit Free Press, 303 F.3d at 698
No. 05-4534           Matovski, et al. v. Gonzales                                             Page 14


(“This document must contain information sufficient to put the non-citizen on notice of the charges
against him.”). However, the INS never charged the petitioners with any other ground for removal
beyond their failure to maintain valid nonimmigrant visitor-for-pleasure status under 8 U.S.C.
§ 1227(a)(1)(C)(i), a charge contained within their Notices to Appear. Likewise, the Immigration
Judge found that the petitioners were removable on this ground alone. Whereas the Immigration
Judge denied in part Petitioners’ renewed adjustment of status applications for willful
misrepresentation of a material fact under 8 U.S.C. § 1182(a)(6)(C)(i), violation of this provision
was never reviewed as a ground for removal. Therefore, no due process violation occurred during
the first stage of Petitioners’ removal proceeding.
2.      Stage Two: Adjudication of Applications for Discretionary Relief
       The due process accorded to the first stage of removal proceedings (determination of
removability) differs from that accorded throughout the second stage (adjudication of applications
for discretionary relief). Upon a finding of removability, petitioners are permitted to raise
applications for discretionary relief, including “(i) adjustment of status, 8 U.S.C.S. § 1255; (ii)
cancellation of removal, 8 U.S.C.S. § 1229b; (iii) asylum, 8 U.S.C.S. § 1158; [(iv)] voluntary
departure, 8 U.S.C.S. § 1229c; and [(v)] registry, 8 U.S.C.S. § 1259.” Detroit Free Press, 303 F.3d
at 698 n.13. In the present case, Petitioners filed applications seeking adjustment of status and
voluntary departure.
         Throughout the first stage of a removal proceeding, the government bears the burden of
proving removability by clear and convincing evidence. 8 U.S.C. § 1229a(c)(3)(A). However,
during the second stage of a removal proceeding, an alien who is an applicant for admission
maintains the burden of establishing that he or she is “clearly and beyond doubt entitled to be
admitted and is not inadmissible.” See 8 C.F.R. § 1240.8(b). “An alien seeking to adjust his status
to that of a lawful permanent resident is assimilated to the position of an applicant for entry into the
United States.” Palmer v. INS, 4 F.3d 482, 484 (7th Cir. 1993) (citing Pei-Chi Tien v. INS, 638 F.2d
1324, 1326 (5th Cir. 1981)); Yui Sing Tse v. INS, 596 F.2d 831, 834 (9th Cir. 1979).
        Therefore, when the petitioners renewed their adjustment of status applications, they bore
the burden of establishing both that they were statutorily eligible for the requested relief and that
they merited a favorable exercise of agency discretion. Detroit Free Press, 303 F.3d at 698 (citing
8 C.F.R. § 242.17(e)). The petitioners enjoyed the right to know the charges of removability against
them and to have those charges listed on Notices to Appear. However, the petitioners had no right
to require the government to list every defense against their potential applications for discretionary
relief. Compliance with such a request for written verification of every possible defense to every
potential form of discretionary relief would be virtually impossible. Brown v. Ashcroft, 360 F.3d
346, 351-52 (2d Cir. 2004).
        As such, we find that the Board of Immigration Appeals correctly held that “an Immigration
Judge may rule on any ground of inadmissibility that arises during the course of the proceedings,
including such grounds that are not included in the charging document.” See Matter of Salazar, 17
I. & N. Dec. 167 (BIA 1979) (“If . . . a possible ground of excludability develops, it is proper for the
ground to be ruled upon by the immigration judge, as long as the applicant is informed of the issues
confronting him at some point in the hearing, and he is given a reasonable opportunity to meet
them.”). In addition, Petitioners had actual notice that the government intended to oppose
admissibility on the ground that Petitioners allegedly misrepresented a material fact. This rationale
was the primary ground of inadmissability adopted by the INS in their initial denial of Petitioners’
I-485 applications. As such, the petitioners cannot claim that they were unfairly disadvantaged by
the Immigration Judge’s admission of this line of argument. See Brown, 360 F.3d at 351 (holding
with regard to an uncharged defense to a petitioner’s application for discretionary relief, “Brown had
No. 05-4534           Matovski, et al. v. Gonzales                                            Page 15


the burden of proof . . . and had to at least have been aware of the possibility that the INS would try
to rely on his 1996 conviction to bar him from relief.”).
        Finally, Petitioners argue that the DHS had ample opportunity to charge the ground of
inadmissibility for willful misrepresentation by merely amending the Notice to Appear at any time
during the course of the removal proceeding pursuant to 8 C.F.R. § 1003.30 (“At any time during
deportation or removal proceedings, additional or substituted charges of deportability and/or factual
allegations may be lodged by the Service in writing. The alien shall be served with a copy of these
additional charges and/or allegations and the Immigration Judge shall read them to the alien.”).
However, 8 C.F.R. § 1003.30 refers to charges of deportability and factual allegations, not grounds
of inadmissibility or other defenses against applications for discretionary relief. Likewise, the
regulation employs the term “may” not “shall,” implying that the grant of authority to amend
charging documents is permissive not mandatory.
        Therefore, the Court AFFIRMS the Board of Immigration’s ruling that the Immigration
Judge had authority to consider whether the petitioners are inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i) for willfully misrepresenting a material fact even though the DHS failed to charge
this as a ground of inadmissibility.
C.     Review on the Merits of the Immigration Judge’s Two Remaining Bases for Denying
       Petitioners’ Applications
        Petitioners contend that the Board’s failure to consider the merits of Petitioners’ claim that
the Immigration Judge erred in finding the petitioners inadmissible for willful misrepresentation
prevents meaningful review of this issue. Petitioners maintain that the Immigration Judge
erroneously concluded that Petitioners willfully misrepresented a material fact. Similarly, the Board
never ruled on the merits of whether the Immigration Judge abused her discretion in denying
petitioners' applications for adjustment of status as a matter of discretion. We agree that without
review on the merits by the Board of Immigration Appeals, these issue are not ripe for review before
this Court. See INS v. Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking, a court of appeals
should remand a case to an agency for decision of a matter that statutes place primarily in agency
hands . . . The agency can bring its expertise to bear upon the matter; it can evaluate the evidence;
[and] it can make an initial determination.”).
       Given that we ruled in favor of the petitioners with regard to 8 U.S.C. § 1154(j) portability,
we are remanding the adjudication of Petitioners’ renewed adjustment of status applications to the
Immigration Judge for further proceedings. The issues of whether the petitioners were properly
found inadmissible for willfully misrepresenting a material fact and whether the Immigration Judge
abused her discretion in finding the petitioners inadmissible as a matter of discretion will require
review on the merits by the Board upon appeal from the Immigration Judge’s decision.
No. 05-4534           Matovski, et al. v. Gonzales                                          Page 16


                                         VI. Conclusion
        For the foregoing reasons, we AFFIRM IN PART and REVERSE IN PART the decision
of the Board of Immigration Appeals. We REMAND this case to the Immigration Judge for initial
determination whether immigrant visas were immediately available when Petitioners originally filed
their I-485 applications, as well as further adjudication of Petitioners’ applications for adjustment
of status in compliance with 8 U.S.C. § 1154(j).
No. 05-4534                Matovski, et al. v. Gonzales                                                            Page 17


                                                 _________________
                                                     DISSENT
                                                 _________________
        ALICE BATCHELDER, Circuit Judge, dissenting. I write separately because I disagree
with the majority’s analysis of the first issue, and furthermore, find it to be inconsistent with the
conclusory decision on the second issue, leaving the two outcomes incongruous. Accordingly, I
disagree with both the holding and the disposition of this appeal. Therefore, I must respectfully
dissent.
        The first issue involves the “portability” of an alien’s I-140 petition, pursuant to INA
§ 204(j), 8 U.S.C. § 1154(j), with the particular question being whether the immigration judge may
decide “if the new job is in the same or similar occupational classification as the old job,” when the
DHS has yet to render a decision on that question. The immigration judge in this case determined
that she had no “jurisdiction” to make that decision in the first instance, suggesting that she instead
had only the jurisdiction to review the DHS’s decision within the context of deciding an adjustment
of status application, of which the portability of the I-140 may or may not be a part, depending on
the case. The BIA affirmed and      the Matovskis appealed. On appeal, the majority reverses that
ruling and — as best I can tell1 — holds that an immigration judge does have jurisdiction to decide
portability as part of the overall adjustment of status adjudication in the removal proceedings.
        I do not believe that this question of whether the immigration judge may decide in the first
instance “if the new job is in the same or similar occupational classification as the old job,” is
actually a jurisdictional matter. I would instead frame it as a procedural matter, perhaps more akin
to exhaustion. Although immigration judges have undoubtedly been granted authority (i.e.,
jurisdiction) to adjudicate adjustment of status applications raised in removal proceedings, see 8
C.F.R. § 245.2(a)(5)(ii), I do not agree that this  grant of authority necessarily, and in all cases,
extends to the decision of I-140 portability.2 There is no dispute that the original I-140


         1
            My misgivings arise from the fact that the majority has herein decided for itself the factual question that the
immigration judge refused to decide (i.e., “if the new job is in the same or similar occupational classification as the old
job”), proceeding throughout its analysis as if it were a foregone conclusion that the conditions at Bob G. Turning and
Milling “represented the same occupational classification and wage as Petitioner Matovski’s previous offer of
employment with Nikolic Industries.” See Maj. Op. § III.B, supra. Based on this treatment of the facts, it may be that
today’s actual, albeit implicit, holding is that an initially-valid-and-still-pending I-140 petition is portable, no matter
what, and neither the DHS nor the immigration judge need make any decision regarding portability. This is the argument
that has been pressed by the Matovskis throughout, and I suppose that it might find support in the majority’s analysis
of 8 U.S.C. § 1154(j) and its unprompted interjection of 8 C.F.R. § 245.1(g). Of course, such a holding entirely omits
from 8 U.S.C. § 1154(j) the word “if” from the clause “if the new job is in the same or similar occupational classification
as the old job.” I find, however, that I disagree with either version of the holding, so I need not dwell on this distinction.
         2
            Relying on this same reasoning, the Fourth Circuit recently held that an immigration judge “necessarily has
jurisdiction to make a § 204(j) determination, which is simply an act of factfinding incidental to the adjustment of status
process.” Perez-Vargas v. Gonzales, 478 F.3d 191, 194 (4th Cir. 2007). I cannot agree, however, that just because an
immigration judge is capable of making the portability decision (i.e., it “is simply an act of factfinding incidental to the
adjustment of status process”) that judge necessarily has the right to make this decision in the first instance. This same
reasoning would give an immigration judge the right to decide the Application for Alien Employment Certification
(ETA-750), which is specifically dedicated to the Department of Labor, or to decide the original Petition for Alien
Worker Visa (I-140), which is specifically dedicated to the DHS — each is, ultimately, “simply an act of factfinding
incidental to the adjustment of status process.” In both of those scenarios, however, the decision is dedicated to the
agency and the court may not make the decision in the first instance, even though the court is otherwise capable of doing
so. I believe this same limitation applies to the § 204(j) portability decision, and that, although the immigration judge
is assuredly capable of making the decision, this decision — in the first instance — has been dedicated to the agency,
and the immigration judge has been assigned a reviewer’s role.
          The Perez-Vargas court further hypothesized that, if the immigration judge could not make the § 204(j)
No. 05-4534                Matovski, et al. v. Gonzales                                                          Page 18


determination has been dedicated to the DHS, see 8 U.S.C. § 1154(a)(1)(F), and I would view the
question of portability as little more than a subsequent I-140 determination that is likewise dedicated
to the DHS. I believe the DHS’s “Informal Guidance” — on which the majority places significant
emphasis — also supports this view, in that it is a memorandum written to guide the DHS Service
Center Directors, not immigration judges, on the manner by which this decision would be made.
Furthermore, an immigration judge would not ordinarily conduct a de novo review of the DHS’s
decision regarding an I-140 application, but would grant the DHS certain deference. That is, had
the DHS ruled on the Matovskis’ portability question prior to the removal hearing, the immigration
judge would not have been entitled to reassess that decision as if deciding it in the first instance, but
would have reviewed the DHS’s factual decision with the proper degree of deference. This reason
alone — that this holding makes a morass of the nature of the immigration judge’s consideration of
I-140 petitions — would be sufficient to deem the majority opinion’s holding both imprudent and
improper.
         I do agree that circumstances such as are present here, in which the parties are before the
immigration judge in removal proceedings and the DHS has yet to offer a decision on portability,
require that the alien facing removal have some recourse from the DHS’s failure to act, but I do not
agree that the only satisfactory answer is to reassign the DHS’s decision to the immigration judge.
This chooses the final, most extreme solution first. A less extreme solution would be for the
immigration judge to compel the DHS to act. Alternatively, a better solution would be for the
agency to amend the regulations regarding portability and, for instance, assign a presumption one
way or the other for cases in which the DHS has failed to act. It might even be appropriate, as a
practical matter, for a court to create such a presumption until such time as the agency enacts a rule.
However, I believe it is improper for this court to bypass these possibilities and instead instruct the
immigration judge to usurp the prescribed role of the DHS and make the decision in the first instance
as if the immigration judge and the DHS are one and the same. It should go without saying that they
are not; by design, the immigration judge and the DHS have separate roles. Therefore, based on
these separate roles, I would hold that the portability decision must be left with the DHS.
        In the present case, the Matovskis never petitioned or urged the DHS to make a portability
decision — not even once. In fact, the Matovskis did not even tell the DHS of the job change for
almost three years. Mr. Matovski changed jobs on November 27, 2000, but did not inform the DHS
that he had done so until September 16, 2003; almost three years later, which was seventeen (17)
months after the DHS had initiated removal proceedings (April 11, 2002) and just ten months before
the removal hearing (July 22, 2004). At the hearing, the Matovskis never moved the immigration
judge to compel the DHS to make this decision. Instead, the Matovskis insisted that even the
immigration judge could not make the portability decision, and that portability was automatic. Of
course, even if the Matovskis had urged the DHS to make the decision, such a request would likely
have been futile, since the DHS had already denied their Application to Register Permanent
Residence or Adjust Status (I-485) over two years earlier (April 11, 2002) on entirely different
grounds. Therefore, it is likely that by the July 22, 2004, hearing, the DHS viewed the I-140
portability question as moot.


portability decision in the first instance, then “it would effectively deny the benefits of § 204(j) to those aliens who are
in removal proceedings.” Perez-Vargas, 478 F.3d at 195. The court explained:
          [If] an alien in removal proceedings cannot invoke the protections of § 204(j) before the IJ but,
          instead, must seek administrative closure of the removal proceedings and ask DHS to determine the
          continuing validity of his visa petition pursuant to § 204(j) . . . [then], because administrative closure
          requires the consent of DHS, the alien’s access to § 204(j) lies within the discretion of the government.
          If DHS were to refuse the alien’s request for administrative closure - as it did in this case - the alien
          would be unable to avail himself of the process which Congress provided in § 204(j).
Id. As further discussed above, however, I do not believe that this single, and very limited, approach is the alien’s only
recourse to the DHS’s failure to reach a decision on portability. Because I find the reasoning underlying the Perez-
Vargas decision unpersuasive, I conclude that it provides no support for a similar outcome in the present case.
No. 05-4534           Matovski, et al. v. Gonzales                                           Page 19


        Both the DHS and the immigration judge denied the Matovskis’ applications for adjustment
of status based on an undisputed and indisputable finding that the Matovskis had, over the course
of several years, procured numerous visas through willful misrepresentation of a material fact. The
Board did not reach this issue, but instead affirmed the immigration judge on the portability issue,
which was sufficient to resolve the case. In resolving this appeal, the majority holds that because
the Board did not reach this issue, we may not do so in the first instance. I think the majority is
correct in this respect, but this holding is suspiciously at odds with the majority’s holding that the
immigration judge must decide portability in the first instance, despite the fact that the DHS had not
reached the issue. I find no reasoning in the majority opinion to explain when a reviewing court
should defer to the agency and when it should not. Without such an explanation, the opinion is
merely an ad hoc decision that provides no guidance for future cases and does not further the law.
Instead, it confuses the law in an effort to further its own ends.
        The majority also takes the unusual approach of remanding this case to the immigration
judge to decide the portability issue, with an acknowledged anticipation that the adverse credibility
decision “will require review on the merits by the Board upon appeal from the Immigration Judge’s
[subsequent portability] decision.” Thus, despite the fact that the adjustment of status application
has been (and remains) denied based on the immigration judge’s adverse credibility determination,
the majority has effectively stayed any review by the Board of the immigration judge’s adverse
credibility decision until the immigration judge has rendered a new decision on the portability issue.
The portability issue, just like the adverse credibility issue, is merely an alternative basis for
deciding the adjustment of status application. One has no more importance than the other. If, as the
majority concludes, there is a need to remand this case — a conclusion with which I disagree — then
the proper approach would be to remand it to the Board to rule on the credibility issue. If the Board
were to affirm the immigration judge on the credibility issue, the case would be over; if not, then
the Board could remand the case to the immigration judge to reconsider the portability issue based
on the majority’s holding herein. This approach would avoid wasted time and effort, and more
importantly, it would afford the Board its proper role in this process.
