Matovski v. Gonzales

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0219p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioners, -

LJUPCO MATOVSKI; VIOLETA MATOVSKA,

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No. 05-4534

v.

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>

ALBERTO GONZALES, Attorney General, -

Respondent. -

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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.*

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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.

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OPINION

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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

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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

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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.