Bassem Mansour v. Eric H. Holder, Jr. , 739 F.3d 412 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3463
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Bassem Hunsi Ahmed Mansour
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 24, 2013
Filed: January 9, 2014
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Before BYE, SMITH, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Bassem Hunsi Ahmed Mansour appeals the final order of the Board of
Immigration Appeals finding him ineligible for “adjustment of status” under 8 U.S.C.
§ 1255(i). Having jurisdiction under 8 U.S.C. § 1252, this court affirms.
I.
Mansour, a Jordanian citizen, entered the United States on a student visa. He
married a legal permanent resident. Invoking section 245 of the Immigration and
Nationality Act—allowing certain aliens present in the United States to apply for
adjustment of status to lawful permanent residency—Mansour’s wife filed an I-130
petition, verifying their qualifying family relationship. 8 U.S.C. § 1255. Mansour
concurrently filed an I-485 petition for permanent residency. The Immigration and
Naturalization Service granted the 1986 petitions, adjusting his status to conditional
permanent resident. The INS terminated this status in 1989, when Mansour and his
wife failed to petition for removal of the residency conditions (he was living out of
the country). See 8 U.S.C. § 1186a(c)(2).
In 1992, Mansour’s mother, then a legal permanent resident, filed an I-130
petition on his behalf. The INS denied the petition because Mansour was married.
Mansour and his wife divorced later that year.
In 1999, Mansour’s mother filed another I-130 petition on his behalf. The INS
approved the petition in 2000, authorizing him to return to the United States and
remain until 2005. Mansour returned on a non-immigrant visa, but remained past the
2005 deadline (without renewing it or adjusting his status).
In 2007, Mansour filed an I-485 petition, again seeking to adjust his status to
legal permanent resident. Because he had not maintained a non-immigrant visa since
2005, he was ineligible for adjustment under INA § 245(a)—which permits
adjustment of status for aliens who enter the United States under inspection or parole
and, as applicable here, maintain lawful non-immigrant status. 8 U.S.C. § 1255(a),
(c). Instead, Mansour sought adjustment under § 245(i)—which permits adjustment
of status for aliens ineligible under § 245(a) or disqualified under § 245(c). 8 U.S.C.
§ 1255(i). Although § 245(i) expired in 2001, a grandfather provision preserved the
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right to adjust status under § 245(i) for certain aliens: the alien must have been the
beneficiary of a qualifying immigrant visa petition (e.g., I-130 petition) filed on or
before April 30, 2001; and, the petition must have been “approvable when filed” (i.e.,
“properly filed, meritorious in fact, and non-frivolous”). 8 C.F.R. § 245.10(a)(1)-(3).
Whether a petition meets these criteria is “based on the circumstances that existed at
the time the qualifying petition or application was filed.” Id. § 245.10(a)(3). For
petitions filed after January 14, 1998, the beneficiary must also have been present in
the United States on December 21, 2000. 8 U.S.C. § 1255(i)(1)(C); 8 C.F.R. §
245.10(a)(1)(ii).
The U.S. Citizenship and Immigration Services (INS’s successor) denied
Mansour’s petition, finding him ineligible for grandfathering based on any of his
three I-130 petitions. As relevant to this appeal, the USCIS determined Mansour
could not rely on his 1986 petition because “an application for adjustment of status
cannot be based on an approved visa petition that has already been used by the
beneficiary to obtain adjustment of status or admission as an immigrant.”
The USCIS initiated removal proceedings. During a removal hearing in
February 2010, Mansour renewed his petition for adjustment of status before an
immigration judge. The IJ denied his request, finding that he was “attempting to
establish that he was grandfathered under a petition that he has already used to gain
conditional permanent resident status, which results in the petition being
‘extinguished.’” In October 2010, Mansour submitted additional evidence for his
petition, which was again denied. He appealed to the BIA. Upholding the IJ’s
decision, the BIA dismissed the appeal.
II.
Where, as here, the BIA adopted the IJ’s opinion and added reasoning and
analysis, this court reviews both decisions. La v. Holder, 701 F.3d 566, 570 (8th Cir.
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2012). This court reviews de novo the BIA’s legal determinations, but accords
“substantial deference to the agency’s interpretation of a federal statute,” unless “it
is inconsistent with the plain language of the statute or constitutes an unreasonable
interpretation of an ambiguous statute.” Afolayan v. INS, 219 F.3d 784, 787 (8th Cir.
2000), citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-45 (1984).
Mansour contends that the unpublished BIA decision in his case is not entitled
to Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 234 (2001)
(classification rulings generally lack the force of law and are “beyond the Chevron
pale”). Many circuits agree, holding that where an agency decision has no
precedential value, Chevron deference is inappropriate. See Arobelidze v. Holder,
653 F.3d 513, 520 (7th Cir. 2011); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir.
2010) (“If the interpretation is not precedential within the agency, then the
interpretation does not qualify for Chevron deference.”); Quinchia v. United States
Atty. Gen., 552 F.3d 1255, 1258 (11th Cir. 2008); Rotimi v. Gonzales, 473 F.3d 55,
57-58 (2d Cir. 2007); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir.
2006). Even if Chevron deference is inappropriate, the BIA decision is entitled to a
“lesser form of deference” under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008), citing Mead Corp.,
533 U.S. at 234.
This court need not address whether Chevron deference is required here
because the BIA decision can be affirmed under Skidmore. See Godinez-Arroyo, 540
F.3d at 851. “The opinion is afforded weight ‘depend[ing] upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which give it power to persuade.’”
Id. at 850, quoting Skidmore, 323 U.S. at 140. To the extent the BIA decision
interprets its own regulations, the interpretation is controlling unless “plainly
erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461
(1997).
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III.
A.
Mansour does not claim eligibility for adjustment of status under § 245(i) based
on his 1992 or 1999 petitions. Rather, he maintains that he is grandfathered under his
1986 petition and attacks the BIA decision as contrary to the unambiguous language
of the statute.
Section 245(i) states that the Attorney General may adjust the status of certain
aliens who are the beneficiaries of qualifying petitions filed on or before April 30,
2001, notwithstanding the provisions of § 245(a) and (c). The statute does not
address whether a petition already used to adjust status is available for
grandfathering. The statute is ambiguous, and the BIA decision is not contrary to it.
See Afolayan, 219 F.3d at 787.
B.
Mansour next argues that the BIA decision is contrary to § 245(i)’s
implementing regulation. The text of 8 C.F.R. § 245.10(a)(3) provides that a visa
petition that “was properly filed on or before April 30, 2001, and was approvable
when filed, but was later withdrawn, denied, or revoked due to circumstances that
have arisen after the time of filing, will preserve the alien beneficiary’s grandfathered
status.” Mansour contends he meets these requirements and that the regulation
unambiguously entitles him to petition for adjustment of status under § 245(i).
The regulation addresses cases where a qualifying petition was later
withdrawn, denied, or revoked. It does not address cases where a petition was
previously approved. The regulation is ambiguous, and the BIA decision is not
contrary to it. See Auer, 519 U.S. at 461.
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C.
Because the regulation is ambiguous, the BIA’s interpretation controls unless
“plainly erroneous or inconsistent.” Auer, 519 U.S. at 461. Because the statute is
ambiguous, the BIA’s interpretation receives Skidmore deference, depending on the
thoroughness, validity, and consistency of its reasoning. Godinez-Arroyo, 540 F.3d
at 850-51.
In March 2005, the Department of Homeland Security clarified the eligibility
requirements to adjust status under § 245(i). See Interoffice Memorandum of William
R. Yates, Associate Director for Operations, USCIS, DHS, “Clarification of Certain
Eligibility Requirements Pertaining to an Application to Adjust Status under Section
245(i) of the Immigration and Nationality Act” (Mar. 9, 2005). The Yates memo
states: “Once an alien meets the requirements for grandfathering under 8 CFR
245.10, the alien continues to be grandfathered until the alien adjusts status.” Id. at
¶ 3(A). Reiterating 8 C.F.R. § 245.10(a)(3), the memo specifies: “If the alien has
been denied adjustment of status, has withdrawn or abandoned the application for
adjustment of status, or has otherwise not adjusted under section 245(i), the alien
remains grandfathered.” Id. (emphasis added). The memo directs: “USCIS no
longer considers an alien ‘grandfathered’ once the alien is granted adjustment of
status under section 245(i) because the alien has acquired the only intended benefit
of grandfathering: LPR status.” Id. at ¶ 3(E)(2). The Yates memo is entitled to
respect to the extent it is persuasive. See Castro-Soto v. Holder, 596 F.3d 68, 73 (1st
Cir. 2010), citing Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
The BIA interpreted the Yates memo to require that a petition filed on or before
April 30, 2001 be “available” (i.e., denied, withdrawn, abandoned, or otherwise not
used) for an alien to be grandfathered under § 245(i). See Castro-Soto, 596 F.3d at
72 (“It is not an illogical corollary that an applicant’s grandfathered status should
expire once he has obtained all of the benefits available through a visa petition.”).
The BIA’s interpretation is consistent with the supplementary information to an
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interim rule implementing § 245(i): “A visa petition does not serve to grandfather the
alien beneficiary if that alien has previously obtained lawful permanent resident status
on the basis of that visa petition.” See Adjustment of Status to That Person Admitted
for Permanent Residence; Temporary Removal of Certain Restrictions to Eligibility,
66 Fed. Reg. 16383, 16384 (Mar. 26, 2001). The BIA’s interpretation is persuasive,
not plainly erroneous, and consistent with the statute and regulation. Castro-Soto,
596 F.3d at 72 (“[I]t was not plainly erroneous or inconsistent with the regulation for
the BIA to find that Castro-Soto had obtained all of the benefit due to him based on
[his prior petition], and that the petition was therefore extinguished and cannot now
provide grandfathered status.”).
Mansour argues that the BIA ignored language in: (1) the statute—an alien
may adjust under § 245(i) “Notwithstanding the provisions of subsections (a) and (c)
of this section”; and, (2) the Yates memo—an alien is eligible for grandfathering if
the alien “has not adjusted status under 245(i)” (emphasis added). According to
Mansour, this language implies that § 245(i) is a “distinct and separate scheme for
adjustment of status that operates apart from the rest of section 245” and the “only
thing that terminates the eligibility of a grandfathered alien is the use of § 245(i)
itself.” See Matter of Legaspi, 25 I&N Dec. 328, 329 n.2 (BIA 2010) (finding that
the beneficiary of a 1987 visa petition who adjusted her status under § 245(a) remains
grandfathered and eligible for adjustment under § 245(i) until she adjusts under §
245(i)).
No regulations, memorandums, BIA decisions, or courts of appeal have
interpreted the statute as Mansour does. Legaspi is inapposite: the petitioner there
had not previously used the petition under which she was grandfathered. Rather, her
status was adjusted based on a separate petition. Moreover, Mansour’s interpretation
contravenes the purpose of the grandfathering provision: to allow aliens who did not
receive an adjustment of status from their qualifying petition to apply for an
adjustment after § 245(i) expired. See Castro-Soto, 596 F.3d at 72-73, citing
Echevarria v. Keisler, 505 F.3d 16, 19 (1st Cir. 2007).
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Mansour also argues that the BIA decision is a “petition-based” reading of §
245(i) inconsistent with the “alien-based” regulation. See 66 Fed. Reg. at 16384-85
(recognizing an alien-based reading of § 245(i)). He reasons that the BIA should
“tie[] eligibility for § 245(i) to the alien, not the qualifying petition.” The BIA
decision does not conflict with this reasoning. The decision says: “A grandfathered
alien is not limited to seeking adjustment of status based solely on the qualifying visa
petition or application for labor certification that initially conferred grandfathered
status. Such aliens may seek adjustment of status on any other basis for which they
are eligible.” By the BIA decision, if Mansour were a grandfathered alien, he would
be eligible for adjustment of status on any proper basis. However, because Mansour
was not grandfathered, he is ineligible for adjustment of status under § 245(i).
The BIA’s conclusion that Mansour is not entitled to adjustment of status is a
persuasive interpretation of § 245(i) and is not plainly erroneous or inconsistent with
8 C.F.R. § 245.10. Under the deference afforded by Skidmore and Auer, this court
affirms the BIA.
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The petition is denied.
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