smoke and mirrors and premature whining and cases
TRANSCRIPT
By Joseph P. Whalen (May 29, 2015) http://www.slideshare.net/BigJoe5 Page 1 of 5
Smoke and Mirrors and Premature Whining By Joseph P. Whalen (May 29, 2015)
I have read several articles recently that suggest that one particular non-precedential BIA case decision, In Re Grace Estrellado, A089 056 676 (BIA Nov. 19, 2014),1 has somehow reinterpreted “longstanding application of the law” relating to I-140 priority date retention for EB-1, EB-2, and EB-3 shifts. I am not buying it.
“The Immigration Judge denied the respondent's request for a continuance and pretermitted her application for adjustment of status because she did not have a visa currently available (I.J. at 4-6). The Immigration Judge found that the respondent could not utilize the January 10, 2006 priority date from her original I-140 visa petition, and that the priority date of her subsequent I-140, which is January 3, 2011, was not current and was unlikely to become so for several years (l.J. at 4-6). It is uncontested that the respondent's original I-140 visa petition was withdrawn by her employer on June 26, 2006 (I.J. at 5). The record also contains a notice of revocation from the USCIC dated August 31, 2006 (Respondent's Brief, filed August 31, 2012, at Tab H).” at p. 1
The whining on this subject matter is excessively premature UNLESS there is more out there beyond the REMAND ORDER from the BIA, of Nov. 19, 2014, which also included this tidbit in footnote 2, on page 3.
“2 On appeal, the respondent argues that she remains eligible for adjustment of status under the "no fault exception" at section 245(c) of the Act (Respondent's Brief at 8-11). The Immigration Judge did not address the applicability of section 245(c), nor did she make any findings of fact on such issue. As the Immigration Judge did not reach these issues, and we are remanding the record, we decline to address the respondent's arguments.”
The crux of the arguments has been that the IJ should have allowed the old priority date to be retained as a matter of equity or equitable estoppel, which does not exist as an option. Unsupported legal-lite arguments that miss one needed ingredient (substance), play to emotions and rely on obfuscation. Keep folks confused between concepts from “AC21 portability” and longtime regular old “retention” and you too can write an article that falls short of another needed ingredient (reality). With really nothing worth saying on this non-issue—I’ll stop here. 1 The BIA Decision and the underlying IJ Decision are appended.
By Joseph P. Whalen (May 29, 2015) http://www.slideshare.net/BigJoe5 Page 2 of 5
For easy reference:
8 C.F.R. § 204.5
(e) Retention of section 203(b) (1), (2), or (3) priority date. A petition approved on behalf of an alien under sections 203(b) (1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b) (1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b) (1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date. A petition revoked under sections 204(e) or 205 of the Act will not confer a priority date, nor will any priority date be established as a result of a denied petition. A priority date is not transferable to another alien.
INA § 204
(e) Subsequent finding of non-entitlement to preference classification
Nothing in this section shall be construed to entitle an immigrant, in behalf of whom a petition under this section is approved, to be admitted the United States as an immigrant under subsection (a), (b), or (c)of section 203 of this Act [8 U.S.C 1153] or as an immediate relative under section 201(b) of this Act [8 U.S.C 1151(b)] if upon his arrival at a port of entry in the United States he is found not to be entitled to such classification.
INA § 205 Revocation of approval of petitions; effective date The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204 of this Act [8 U.S.C 1154] . Such revocation shall be effective as of the date of approval of any such petition.
By Joseph P. Whalen (May 29, 2015) http://www.slideshare.net/BigJoe5 Page 3 of 5
8 C.F.R. § 205.1 Automatic revocation.
(a) Reasons for automatic revocation. The approval of a petition or self-petition made under section 204 of the Act and in accordance with part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of the beneficiary pursuant to the provisions of section 203(e) of the Act before October 1, 1991, or section 203(g) of the Act on or after October 1, 1994;
(2) If the filing fee and associated service charge are not paid within 14 days of the notification to the remitter that his or her check or other financial instrument used to pay the filing fee has been returned as not payable; or
(3) If any of the following circumstances occur before the beneficiary's or self-petitioner's journey to the United States commences or, if the beneficiary or self-petitioner is an applicant for adjustment of status to that of a permanent resident, before the decision on his or her adjustment application becomes final:
******
(iii) Petitions under section 203(b), other than special immigrant juvenile petitions.
(A) Upon invalidation pursuant to 20 CFR Part 656 of the labor certification in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in employment-based preference cases, with
By Joseph P. Whalen (May 29, 2015) http://www.slideshare.net/BigJoe5 Page 4 of 5
any officer of the Service who is authorized to grant or deny petitions.
(D) Upon termination of the employer's business in an employment-based preference case under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3) of the Act.
(iv) Special immigrant juvenile petitions. ….
******
(b) Notice. When it shall appear to the director that the approval of a petition has been automatically revoked, he or she shall cause a notice of such revocation to be sent promptly to the consular office having jurisdiction over the visa application and a copy of such notice to be mailed to the petitioner's last known address.
[61 FR 13077, Mar. 26, 1996, as amended at 71 FR 35749, June 21, 2006]
8 C.F.R. § 205.2 Revocation on notice.
(a) General. Any Service officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in §205.1 when the necessity for the revocation comes to the attention of this Service.
(b) Notice of intent. Revocation of the approval of a petition of self-petition under paragraph (a) of this section will be made only on notice to the petitioner or self-petitioner. The petitioner or self-petitioner must be given the opportunity to offer evidence in support of the petition or self-petition and in opposition to the grounds alleged for revocation of the approval.
By Joseph P. Whalen (May 29, 2015) http://www.slideshare.net/BigJoe5 Page 5 of 5
(c) Notification of revocation. If, upon reconsideration, the approval previously granted is revoked, the director shall provide the petitioner or the self-petitioner with a written notification of the decision that explains the specific reasons for the revocation. The director shall notify the consular officer having jurisdiction over the visa application, if applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the decision to revoke the approval within 15 days after the service of notice of the revocation. The appeal must be filed as provided in part 3 of this chapter, unless the Associate Commissioner for Examinations exercises appellate jurisdiction over the revocation under part 103 of this chapter. Appeals filed with the Associate Commissioner for Examinations must meet the requirements of part 103 of this chapter.
[48 FR 19156, Apr. 28, 1983, as amended at 58 FR 42851, Aug. 12, 1993; 61 FR 13078, Mar. 26, 1996]
Dated this 29th day of May, 2015
X
/s/ Joseph P. Whalen That’s my two-cents, for now!
Hanlon, Daniel P., Esq. Hanlon Law Group, P.C. 225 South Lake Ave., Suite 1100 Pasadena, CA 91101-0000
Name:ESTRELLADO,GRACE
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530
OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014
A 089-056-676
Date of this notice: 11/19/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members: Malphrus, Garry D.
Sincerely,
D� CtVVU
Donna Carr Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
U.S.-Department of Justice Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virgihia 20530
File: A089 056 676-Los Angeles, CA
In re: GRACE ESTRELLADO
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Daniel P. Harilon, Esquire
APPLICATION: Adjustment of status
NOV 19 2014
The respondent appeals from the Immigration Judge's decision dated January 23, 2013, finding her removable as charged, and denying her application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). The respondent's appeal will be dismissed in part, and the record will be remanded for further proceedings.
We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C .. F.R. § 1003.l(d)(3)(ii).
The Immigration Judge denied the respondent's request for a continuance and pretermitted her application for adjustment of status because she did not have a visa currently available (I.J. at 4-6). The Immigration Judge found that the respondent could not utilize the January 10, 2006 priority date from her original I-140 visa petition, and that the priority date of her subsequent I-140, which is January 3, 2011, was not current and was unlikely to become so for several years (l.J. at 4-6). It is uncontested that the respondent's original I-140 visa petition wa5 withdrawn by her employer on June 26, 2006 (I.J. at 5). The record also contains a notice of revocation from the USCIC dated August 31, 2006 (Respondent's Brief, filed August 31, 2012, at Tab H).
We affirm the Immigration Judge's conclusion that the respondent may not utilize the priority date from her original 1-140 visa petition because it was withdrawn and the USCIS revoked it (I.J. at 5; Respondent' Brief at 5-7). Relying on 8 C.F.R. § 204.5(e), the respondent contends that she can retain the January 10, 2006, priority date from the previously approved employment petition (Respondent's Brief at 6; Tr. at 21). Unfortunately for the respondent, 8 C.F.R. § 204.5(e) provides that "[a] petition revoked under sections 204(e) or 205 of the Act will not confer a priority date.'' As the USCIS revoked the original visa petition, 8 C.F.R. § 204.S(e) does not permit the retention of that visa petition's January 10, 2006 priority date. Section 205 of the Act, 8 U.S.C. § 1155. Moreover, the Immigration Judge did not err in denying a continuance given the DHS's opposition and the remoteness of the respondent's January 3, 2011 priority date at the time of the hearing. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
Nevertheless, during the pendency of the respondent's appeal, her January 3, 2011 priority date has become current. We take administrative notice of the fact that the current State Department Visa Bulletin provides June 1, 2012, as the cutoff date for 3rd preference
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
A089 056 676
e�ployment vi�as.1 See Matter of Rajah, 25 l&N Dec. 127, n. 6, 132 (BIA 2009). As the Immigration Judge denied the respondent's adjustment of status application based on the absence of an immediately available visa, and the respondent's priority date is now current, we will remand the record to allow the respondent to pursue such relief from removal. 2 In doing so, we express no opinion as to the ultimate resolution of the respondent's applications for relief. Matter of L-0-G-, 21 l&N Dec. 413, 422 (BIA 1996).
Accordingly, the following order will be entered.
ORDER: The respondent's appeal is dismissed in part, and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
FOR THE BOARD
1 Available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visabulletin-for-november-2014.html.·
2 On appeal, the respondent argues that she remains eligible for adjustment of status under the "no fault exception" at section 245(c) of the Act (Respondent's Brief at 8-11). The Immigration Judge did not address the applicability of section 245(c), nor did she make any findings of fact on such issue. As the Immigration Judge did not reach these issues, and we are remanding the record, we decline to address the respondent's arguments.
2
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
UN ITED STATE S DEPARTMENT O F JUST I CE
EXECUT IVE OFF ICE FOR IMM IGRAT I ON REV IEW
UN I TED STATE S IMM IGRAT ION C OURT
LOS ANGELES, CAL I FORN IA
File: A089-056-676
In the Matter o f
GRACE ESTRELLADO
RE SPONDENT
January 23, 2013
I N REMOVAL PROCEED INGS
CHARGES: Section 237(a) (1) (B) o f the Immigration and
Nationality Act as amended, in that a fter
admission as a non-immigrant under Section
lOl(a) (15) o f the A ct you have remained in the
United States for a time longer than permitted in
violation o f the laws o f the Un ited States.
APP L I CA T I ONS: Adjustme nt o f status pursuant to Section 245(a)
and volu ntary departure pursuant to Section
240B(b) (1) .
ON BEHALF OF RE SPONDENT: EVA L. CARRA S C O
O N BEHALF OF OHS: MARK C. TOMINES
ORAL DEC I S ION O F THE IMM IGRAT ION JUDGE
INTRODUCTION AND PROCEDURAL SUMMARY
Respondent is a female native o f the Philippines and a
citizen o f Canada. United States Department o f Homeland
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
Se curity (OHS) has brought these removal pro ceedings against
respondent under the authority o f the Immigration and
Nationality A ct (A ct or INA) . Pro ceedings were commen ced with
the filing o f the Noti ce to Appear (NTA) with the Immigration
Court on August 18, 2009. See Exhibit 1. Respondent admits as
alleged in the NTA that she is not a citizen or national o f the
United States but is a native o f the Philippines and a citizen
o f Canada, that she was admitted to the United States at
Van couver, British Columbia on or about July 25, 2007 as a non
immigrant TN NAFTA pro fessional with authorization to remain in
the United States for a temporary period not to ex ceed July 24,
2008, but that she remained in the United States beyond that
date without authorization. Respondent also con cedes that she
is removable pursuant to Se ction 237(a) (1) (B) of the A ct, in
that a fter admission as a non-immigrant she has remained in the
United States for a time longer than permitted. Based on
respondent's admissions and con cessions and other eviden ce of
re cord, the Court finds respondent is removable as charged.
Respondent de clined to designate a country o f removal, and
Canada was dire cted by the Court upon re commendation by the
Government.
Respondent has applied for relie f from removal in the
form of adjustment of status under Se ction 245(a) o f the Act.
In the alternative respondent has requested post-hearing
voluntary departure under Se ction 240B(b) o f the A ct.
A089-056-676 2 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
Respondent has requested no other relie f from removal. At a
prior hearing the Court advised respondent that it did not
believe that she was going to be eligible for ad justment at this
time be fore the Court, but gave counsel an opportunity to br ie f
the issue regarding respondent's adjustment of status
eligibility. Moreover, the Court advised both parties that it
would issue a written decision advising the parties o f its
intent in this regard. By order d ated June 28, 201 2 the Court
advised both parties that the Court was i nclined to make a
finding that respondent was not statutorily eligible for
adjustment of status and gave respondent up a nd to December 31,
201 2 to file any and all other relie f applicat ions that she
w ished to pursue. The Court received no other applications for
relie f, and in court on today's date respondent through counsel
made it clear that she would be seeking no other ave nues o f
relie f. The Court also advised respondent in the order dated
June 28th, 201 2 that i f she was going to seek prosecutorial
discretion from the Department o f Homeland Security, it should
so be done be fore the heari ng on today's date, as the Court
would not continue the case for this reason. By motion dated
Ja nuary 4, 2013, respo ndent through counsel d id make a motion to
co ntinue for the sole purpose o f trying to work out an agreement
for prosecutorial discretio n with Government Counsel. By order
dated January 7, 2013, that request was denied, as respondent
was warned that no co nt inuances would be granted for that
A089-056-676 3 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
reason. On the hearing on January 23, 2013 the Court did
inquire of both parties regarding the request for prosecutorial
discretion, as it did advise the parties that if a joint
agreement had been made and was ready to be signed on today's
date that the Court would entertain such a motion. According to
Government Counsel and respondent's counsel, no joint agreement
had been reached. According to Government Counsel, respondent's
request for prosecutorial discretion had been reviewed and had
been declined.
LAW, ANALYSIS, AND FINDINGS OF THE COURT
The status of an alien who was inspected and admitted
or paroled into the United States may be ad justed to that of an
alien lawfully admitted for permanent residence if she applies
for adjustment, is eligible to receive an immigrant visa, and is
admissible to the United States for permanent residence, and an
immigrant visa is immediately available to her at the time her
application is filed. INA Section 245 (a) . In the instant case
respondent is seeking ad justment of status based on an approved
I-140 labor visa. However, based on the documents submitted
into the record, it appears that respondent's I-140 approval has
a priority date of January 3, 2011. This is approval as a
skilled worker or professional under Section 203 (b) (3) (A) (i) ( I I)
of the Act. Reviewing the current visa bulletin for January, it
appears that visa numbe rs are only current for individuals who
have a priority date before February 1, 2007. Looking forward
A089-056-676 4 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
by one month to the February 2013 visa bulletin, it appears that
the category jumps to March 15, 2007. Given that respondent's
priority date is not until 2011, at least four years away, it is
clear that respondent does not have a visa immediately
available, and because respondent does not have a visa
immediately available, she is currently ineligible to adjust her
status before the Court. Respondent contends, however, that she
should be allowed to capture a prior visa that was filed on her
behalf back in 2006. Now it is clear from the documents of
record that respondent had an original I-140 filed on her behalf
with a priority date of January 10, 2006. However, this I-140
was withdrawn by her employer on June 26, 2006, and that is not
contested. This prior I-140 is also through a different
petitioner, that being Quality Registry Inc., whereas
respondent's current approved I-140 is through Sherman Oaks
Hospital. Respondent has provided no legal support that she is
entitled to capture the prior priority date of the I-140 which
has been withdrawn and is no longer valid. Although respondent
makes arguments that the prior January 2006 priority date should
be captured as a matter of equity, the Court finds that it has
no authority to do so under the law. The Immigration Court is
not a Court of equity but is in fact a Court of law and
regulation, and because respondent is unable to point to any
specific regulation or provision of the Act or case law which
allows for the capturing of a prior priority date based on a
A089-056-676 5 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
separate labor cert if icat ion f iled by a separate employer wh ich
has been w ithdrawn to be attached to a new approved labor
cert if icat ion from a new employer, the Court f inds it does not
have the author ity to do so. And therefore, the January 2006
pr ior ity date cannot be used to make respondent's imm igrant v isa
currently ava ilable to her. As such, the Court f inds that
respondent is not el ig ible to ad just her status under Sect ion
245 (a) of the Act and must deny that requested rel ief.
Respondent has requested post-hear ing voluntary
departure in the alternat ive. To establ ish el ig ib il ity for
voluntary departure, respondent must prove that she has been
phys ically present in the �n ited States for at least one year
immed iately preced ing serv ice of the NTA, is and has been a
person of good moral character for at least f ive years
immed iately preced ing her appl icat ion for voluntary departure,
has not been conv icted of an aggravated felony or removal for a
secur ity-related ground, and has establ ished by clear and
conv inc ing ev idence that she has the means to depart the Un ited
States and intends to do so. See INA Sect ion 240X (b) (1) of the
Act. Respondent has establ ished her el ig ib il ity for post
hear ing voluntary departure and the Court sees no reason as a
matter of discret ion to deny such request. Therefore,
respondent's request for post-hearing voluntary departure w ill
be granted.
A089-056-676 6 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net
ORDERS
IT I S HEREBY ORDERED that respondent's request for
ad justment of status pursuant to Section 245 (a) of the Act be
denied.
IT I S FUR THER ORDERED that respondent's request for
voluntary departure in lieu of removal without expense to the
United States Government be granted.
IT I S FURTHER O RDERED that respondent shall post a
voluntary departure bond in the amount of $500 with the
Department of Homeland Security on or before January 30, 2013.
IT I S FURT HER ORDERED that respondent shall depart
from the United States no later than March 25, 2013.
IT I S FURTHER ORDERED that if respondent fails to
comply with any of the above orders, the voluntary departure
order shall without further notice or proceedings vacate the
next day and respondent shall be removed from the United States
to Canada on the charge contained in the Notice to Appear.
A089-056-676
TARA NA SEL OW-NAHA S
Immigration Judge
7 January 23, 2013
Imm
igrant & Refugee A
ppellate Center | w
ww
.irac.net