Markovski v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LJUPCO MARKOVSKI, 

Petitioner,

v.

ALBERTO R. GONZALES, Attorney  No. 05-2317

General; MICHAEL CHERTOFF,

Secretary of Department of

Homeland Security,

Respondents.



On Petition for Review of an Order

of the Board of Immigration Appeals.

(A75-960-047)

Argued: February 1, 2007

Decided: May 21, 2007

Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.

Petition denied by published opinion. Judge Widener wrote the opin-

ion, in which Judge Traxler and Judge Duncan concurred.

COUNSEL

ARGUED: Jennifer Sheethel Varughese, Herndon, Virginia, for Peti-

tioner. Leslie Megan McKay, Senior Litigation Counsel, UNITED

STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-

gation, Washington, D.C., for Respondents. ON BRIEF: Joe W.

Nesari, Herndon, Virginia, for Petitioner. Peter D. Keisler, Assistant

2 MARKOVSKI v. GONZALES

Attorney General, Civil Division, Linda S. Wernery, Assistant Direc-

tor, UNITED STATES DEPARTMENT OF JUSTICE, Office of

Immigration Litigation, Washington, D.C., for Respondents.

OPINION

WIDENER, Circuit Judge:

This is a petition for review of a final decision by the Board of

Immigration Appeals (the Board). We have jurisdiction under 8

U.S.C. § 1252(b)(2).

I.

Ljupco Markovski is a national and native of Macedonia who

entered the United States on September 18, 1998 on a K-1 fiancé visa.

Markovski married his fiancée, Miss Kathleen Spillman (a U.S. citi-

zen) on November 10, 1998 (within 90 days of entry as required by

law, 8 U.S.C. § 1184(d)). The government does not dispute that the

marriage was entered into in good faith and not for the purpose of

fraudulently obtaining an immigration benefit.

On November 16, 1998 Markovski filed a petition with the Immi-

gration and Naturalization Service1 for adjustment of status to that of

an alien admitted for residence based on his marriage to Miss Spill-

man pursuant to 8 U.S.C. § 1255. On February 7, 2000, prior to the

adjudication of his petition for adjustment of status, Markovski’s mar-

riage ended in divorce.

The Immigration and Naturalization Service deemed Markovski’s

application abandoned because he failed to appear at the required

interview. Markovski claims (and the government does not dispute)

that the reason behind his failure to appear was the failure of his now

ex-wife to forward his mail to the new address. Failure to appear for

1

The Immigration and Naturalization Service has since been reorga-

nized and is now called United States Citizenship and Immigration Ser-

vices.

MARKOVSKI v. GONZALES 3

the adjustment of status interview resulted in INS placing Markovski

in removal proceedings. Because Markovski did not receive the notice

to appear for the removal hearing, the ex-wife again did not forward

the mail, he was ordered removed in absentia.

In the meantime, Markovski obtained employment with Amtrak.

Amtrak submitted an I-140 immigrant petition on behalf of

Markovski. Markovski then applied for legal permanent resident sta-

tus based on that petition. While in the process of adjusting his status

based on the I-140 petition, Markovski learned of the order of

removal entered in absentia. Markovski moved to reopen his case, and

the immigration judge consented. However, the IJ denied the applica-

tion to adjust status, holding that Markovski was precluded from

adjusting his status on any basis other than through a petition filed by

his ex-wife. The IJ granted Markovski voluntary departure. The BIA

affirmed the IJ’s decision on November 1, 2005. This petition for

review followed.

II.

The petitioner presents three issues for our review.

1. Whether the IJ and the BIA misapplied 8 U.S.C. § 1255 of the

Immigration and Nationality Act;

2. Whether the BIA erred in not dismissing the case due to proce-

dural defects in the Notice to Appear;

3. Whether the BIA erred in not remanding the case due to the

IJ’s partiality.

III.

When the BIA affirms the IJ’s decision without an opinion, as here,

this court reviews the IJ’s decision. Camara v. Ashcroft, 378 F.3d

361, 366 (4th Cir. 2004). Legal conclusions are reviewed without def-

erence, Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.

2004); however, an agency’s interpretation of the applicable statutes

is entitled to deference and must be accepted if reasonable. Chevron,

4 MARKOVSKI v. GONZALES

U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984). An agency’s

factual determinations are conclusive unless unreasonable. 8 U.S.C.

§ 1252(b)(4)(B). Our review is further limited by the REAL ID Act

which prohibits judicial review of the denial of discretionary relief to

the alien by the Attorney General. 8 U.S.C. § 1252(a)(2)(B). We do

retain the authority to pass on the alien’s legal and constitutional

claims. 8 U.S.C. § 1252(a)(2)(D).

IV.

Markovski’s primary argument rests on the proposition that the

INA, 8 U.S.C. § 1255, when read as a whole should be interpreted to

permit his application to adjust status based on employment. The

argument is not convincing.

"Under the most basic canon of statutory construction, we begin

interpreting a statute by examining the literal and plain language of

the statute." Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th

Cir. 1996). The court’s inquiry ends with the plain language as well,

unless the language is ambiguous. United States v. Pressley, 359 F.3d

347, 349 (4th Cir. 2004).

8 U.S.C. § 1255(d) of the INA reads in relevant portion:

The Attorney General may not adjust, under subsection (a)

of this section, the status of a nonimmigrant alien described

in section 1101 (a)(15)(K) of this title except to that of an

alien lawfully admitted to the United States on a conditional

basis under section 1186a of this title as a result of the mar-

riage of the nonimmigrant (or, in the case of a minor child,

the parent) to the citizen who filed the petition to accord that

alien’s nonimmigrant status under section 1101 (a)(15)(K)

of this title.

On its face, subsection (d) prohibits an alien who arrived on the

K-1 fiancé visa from adjusting his status on any basis whatever save

for the marriage to the K-1 visa sponsor. The language of the statute

is clear and speaks directly to the petitioner’s situation. Our duty is

to give the statutory language effect.

MARKOVSKI v. GONZALES 5

Markovski attempts to get around the clear language of subsection

(d) by arguing that subsection (i) affords him relief. He is incorrect.

Subsection (i) allows for adjustment of status in certain situations

"[n]otwithstanding the provisions of subsections (a) and (c) of this

section." 8 U.S.C. § 1255(i)(emphasis added). As is evident from the

plain language of the statute, subsection (i) does not afford any relief

from the provisions of subsection (d). On this issue we agree with the

Ninth Circuit which has reached that same conclusion in Kalal v.

Gonzales, 402 F.3d 948 (9th Cir. 2005).

Markovski attempts to distinguish Kalal by arguing that the alien

in that case never married her sponsoring fiancé and instead married

a third party. During oral argument Markovski attempted to bolster

that position by citing to INS’ interim rule regarding adjustments

under subsection (i). See 59 Fed. Reg. 51,091. According to

Markovski, the interim rule explicitly excludes from provisions of

subsection (i) those immigrants who entered on a K-1 visa but failed

to marry their fiancé sponsor. 59 Fed. Reg. 51,091 ("An applicant

who was admitted to the United States as a K-1 fiance(e) but did not

marry the United States citizen who filed the petition, . . . is also

barred from adjusting status under section 245 of the Act.")(emphasis

added). The rule, however, is silent with respect to aliens in

Markovski’s situation, i.e., those who did marry their sponsors, but

later got divorced prior to the adjudication of their adjustment of sta-

tus petitions. According to Markovski, this omission is significant and

that by implication, he is not excluded from the provisions of subsec-

tion (i).

Markovski’s claim fails for two reasons. First, as explained above,

the language of the statute itself is not ambiguous and bars beneficia-

ries of the K-1 visa from adjusting status on any basis other than mar-

riage to the petition sponsor. The statute makes no distinction

between those aliens who got married and later divorced and those

who failed to get married altogether. Second, the sentence on which

Markovski relies is not even part of the rule, rather it is explanatory

background information. The actual interim rule begins on page

59,095 of the 59th volume of the Federal Register. Furthermore, since

the promulgation of the interim rule, it has been amended several

times. See 8 C.F.R. § 1245.10 ("History: 59 Fed. Reg. 51095, Oct. 7,

1994, as corrected at 59 Fed. Reg. 53020, Oct. 20, 1994; 62 Fed. Reg.

6 MARKOVSKI v. GONZALES

10312, 10384, March 6, 1997; 62 Fed. Reg. 39417, 39424, July 23,

1997; 62 Fed. Reg. 50999, 51000, Sept. 30, 1997; 62 Fed. Reg.

55152, 55153, Oct. 23, 1997; 66 Fed. Reg. 16383, 16388, Mar. 26,

2001; 68 Fed. Reg. 9824, 9842, 9846, Feb. 28, 2003; 68 Fed. Reg.

10349, 10357, Mar. 5, 2003"). The current version of the rule appears

at 8 C.F.R. § 1245.10. The current version does not make any distinc-

tions between those aliens who got married and later divorced and

those who failed to get married. Instead the final rule simply omits the

discussion of that topic altogether (perhaps relying on the clear lan-

guage of 8 U.S.C. § 1255(d)). Accordingly, we are of opinion that

there is no merit to Markovski’s argument.2

V.

Markovski’s remaining arguments are without merit. Markovski

alleges that the Notice to Appear and Certificate of Service were not

dated and therefore are procedurally defective. A review of the

record, however, establishes that both documents were dated with the

date of May 22, 2001. J.A. 329-30.

Finally, Markovski alleges that the IJ was biased against him

because during the hearing, the IJ suggested that the government

attorney read into the record the regulations applicable to

Markovski’s case "for the edification of the record." This argument

is without merit. The regulations in question are the governing law.

Whether or not they become part of the record would not in any way

change what the IJ was obligated to consider in reaching his decision.

In any event, an IJ is not considered prejudiced unless he demon-

strates a personal bias against a specific petitioner. See Matter of

Exame, 18 I. & N. Dec. 303, 306 (BIA 1982). Asking an attorney to

read regulations into the record does not indicate such bias.

2

We also reject Markovski’s reliance on Matter of Zampetis, 14 I. &

N. Dec. 125 (Reg’l Comm’r 1972). Zampetis was decided before Con-

gress enacted the prohibition on adjustment of status contained in

§ 1255(d) and therefore sheds no light on the meaning or applicability of

that statutory provision. To the extent that Zampetis may contradict the

mandate of § 1255(d), it is superceded by statute.

MARKOVSKI v. GONZALES 7

Accordingly, the petition for review is

DENIED.