Landin-Molina v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR LANDIN-MOLINA, 

Petitioner,

No. 05-73677

v.

 Agency No.

ERIC H. HOLDER JR., Attorney A079-652-076

General,

Respondent.



PETRA ESTRADA-MENDOZA, 

Petitioner, No. 05-75825

v.

 Agency No.

A076-346-685

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petitions for Review of Orders of the

Board of Immigration Appeals

Submitted June 12, 2009*

San Francisco, California

Filed September 1, 2009

Before: Stephen S. Trott, M. Margaret McKeown and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown

*The panel unanimously finds these cases suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

12179

LANDIN-MOLINA v. HOLDER 12181

COUNSEL

Nicomedes E. Suriel, Phoenix, Arizona, for petitioner Landin-

Molina.

12182 LANDIN-MOLINA v. HOLDER

Peter D. Keisler, Assistant Attorney General, Mark C. Wal-

ters, Assistant Director, Joanne E. Johnson, U.S. Department

of Justice, Civil Division, Office of Immigration Litigation,

Washington, DC, for the respondent.

Christopher J. Todd, Mill Valley, California; Stephen V.

Scribner, Santa Rosa, California, for petitioner Estrada-

Mendoza.

Peter D. Keisler, Assistant Attorney General, Emily Anne

Radford, Assistant Director, Gjon Juncaj, U.S. Department of

Justice, Civil Division, Office of Immigration Litigation,

Washington, DC, for the respondent.

OPINION

McKEOWN, Circuit Judge:

We consider here an alien’s eligibility to adjust to lawful

permanent resident status via the “grandfathering” regulations

implementing § 245(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1255(i) (“§ 1255(i)”). Adjustment of sta-

tus is generally available only to aliens who were inspected

and admitted or paroled into the United States, see INA

§ 245(a), 8 U.S.C. § 1255(a); however, under § 1255(i), cer-

tain aliens who entered this country without inspection may

apply for adjustment of status. Section 1255(i) expired on

April 30, 2001, and, at present, its benefits are available only

to those aliens who qualify as having been “grandfathered”

into the provision. See 8 C.F.R. § 245.10(b).

This appeal involves two natives and citizens of Mexico,

Victor Landin-Molina (“Landin”) and Petra Estrada-Mendoza

(“Estrada”), who entered the United States unlawfully.

Although these individuals are unrelated, we consolidated

their petitions for review with respect to the grandfathering

issue.

LANDIN-MOLINA v. HOLDER 12183

Landin argues that he is grandfathered by virtue of his mar-

riage to Viviana Ojeda, who adjusted her status as a grandfa-

thered alien. Unfortunately for Landin, the grandfathering

provision does not assist his case. Because the marriage

occurred after Ojeda adjusted to lawful permanent resident

status, she does not impart grandfathered status to him.

Estrada argues that she is grandfathered based upon her regis-

tration for the Replenishment Agricultural Worker (“RAW”)

program. She is not grandfathered, however, because being a

registrant for the RAW program does not satisfy the require-

ment of having filed an application for labor certification.

Consequently, we deny the petitions.1

ANALYSIS

I. INA § 245(i), 8 U.S.C. § 1255(i)

Prior to 1952, immigrant status was predicated upon the

issuance of an immigrant visa, which could be obtained only

at U.S. consular offices abroad. See Choe v. INS, 11 F.3d 925,

928 (9th Cir. 1993). Under that rule, an alien already inside

this country could acquire immigrant status only by temporar-

ily leaving the United States to secure an appropriate visa. See

id. In 1952, Congress enacted INA § 245, 8 U.S.C. § 1255,

which authorized a process — “adjustment of status” —

whereby certain aliens physically present in the United States

could seek lawful permanent resident status without having to

depart this country. Immigration and Nationality Act, Pub. L.

No. 82-414, tit. II, ch. 5, § 245, 66 Stat. 163, 217 (1952).

As initially established, this process benefitted only those

aliens who were in the United States lawfully. See id.; Succar

v. Ashcroft, 394 F.3d 8, 13-14 (1st Cir. 2005). Today, adjust-

ment of status under INA § 245(a), the principal adjustment

provision, is available only to aliens who were inspected and

1

Estrada’s remaining claims are addressed in a memorandum disposi-

tion filed concurrently with this opinion.

12184 LANDIN-MOLINA v. HOLDER

admitted or paroled into the United States, and to certain

aliens with approved classification petitions brought under the

Violence Against Women Act (“VAWA”). See 8 U.S.C.

§ 1255(a).2

This case involves INA § 245(i), 8 U.S.C. § 1255(i), which

authorizes adjustment of status for certain aliens unlawfully in

the United States. Congress enacted this “alternative” adjust-

ment provision in 1994. See Pub. L. 103-317, tit. V, § 506(b),

108 Stat. 1724, 1765-66 (1994); see also Gonzales v. DHS,

508 F.3d 1227, 1230 (9th Cir. 2007).3 As amended by the

Legal Immigration Family Equity Act of 2000, Pub. L. 106-

554, tit. XV, § 1502(a), 114 Stat. 2763, 2763A-324 (2000),

§ 1255(i) permits aliens who entered the United States with-

out inspection to apply for adjustment of status, provided the

alien is the beneficiary of either a petition for classification

under 8 U.S.C. § 1154 or an application for a labor certifica-

tion under 8 U.S.C. § 1182(a)(5)(A). The petition or applica-

tion must have been filed on or before April 30, 2001. See 8

U.S.C. § 1255(i)(1)(A)-(B). Any qualifying alien’s spouse or

children, if eligible to receive a visa under 8 U.S.C. § 1153(d),

2

Section 1255(a) provides in full:

The status of an alien who was inspected and admitted or paroled

into the United States or the status of any other alien having an

approved petition for classification as a VAWA self-petitioner

may be adjusted by the Attorney General, in his discretion and

under such regulations as he may prescribe, to that of an alien

lawfully admitted for permanent residence if (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 immedi-

ately available to him at the time his application is filed.

3

The 1994 law expired on October 1, 1997. Pub. L. No. 103-317, tit. V,

§ 506(c), 108 Stat. at 1766. Congress revived the provision later that same

year and extended its availability to aliens who were the beneficiaries of

qualifying classification petitions or labor certification applications filed

on or before January 14, 1998. See Pub. L. No. 105-119, tit. I, § 111, 11

Stat. 2440, 2458 (1997).

LANDIN-MOLINA v. HOLDER 12185

may also seek a status adjustment under § 1255(i); the quali-

fying alien is called the “principal” alien. Id. § 1255(i)(1)(B).

Upon receipt of the adjustment application, the Attorney

General may adjust the status of the alien to that of a lawful

permanent resident if “(A) the alien is eligible to receive an

immigrant visa and is admissible to the United States for per-

manent residence; and (B) an immigrant visa is immediately

available to the alien at the time the application is filed.” Id.

§ 1255(i)(2).

Following the 2000 legislative amendment, adjustment of

status under § 1255(i) is presently unavailable except for

those aliens who qualify as being grandfathered into the sec-

tion. See 8 C.F.R. § 245.10(b). Under the implementing regu-

lations, a “grandfathered alien” for the purposes of § 1255(i)

is:

an alien who is the beneficiary (including a spouse

or child of the alien beneficiary if eligible to receive

a visa under [8 U.S.C. § 1153(d)]) of:

(A) A petition for classification under [8

U.S.C. § 1154] which was properly filed

with the Attorney General on or before

April 30, 2001, and which was approvable

when filed; or

(B) An application for a labor certification

under [8 U.S.C. § 1182(a)(5)(A)] that was

properly filed pursuant to the regulations of

the Secretary of Labor on or before April

30, 2001, and which was approvable when

filed.

8 C.F.R. § 245.10(a)(1)(i). The term “approvable when filed”

means that, “as of the date of the filing of the qualifying

immigrant visa petition . . . or qualifying application for labor

12186 LANDIN-MOLINA v. HOLDER

certification, the qualifying petition or application was prop-

erly filed, meritorious in fact, and non-frivolous (‘frivolous’

being defined as patently without substance).” Id.

§ 245.10(a)(3). “This determination will be made based on the

circumstances that existed at the time the qualifying petition

or application was filed.” Id.

II. Landin and Estrada Are Not Grandfathered Into

§ 1255(i)

Having entered the United States unlawfully, Landin and

Estrada may pursue adjustment of status only under § 1255(i),

and they may do so only if they are grandfathered into the

provision. We conclude that neither qualifies as a grandfa-

thered alien.

A. Landin

Landin entered the United States without inspection in Jan-

uary 1999, after which the Immigration and Nationality Ser-

vice (“INS”)4 initiated removal proceedings against him. On

May 17, 2004, an immigration judge (“IJ”) determined that

Landin was removable but granted him the privilege of volun-

tary departure.

The very next day, Landin married Viviana Ojeda — a law-

ful permanent resident of the United States. Ojeda, who had

grandfathered into § 1255(i), adjusted to lawful permanent

resident status in April 2004, just weeks before marrying

Landin.

Landin then filed with the immigration court a timely

4

On March 1, 2003, the INS was abolished and its functions were trans-

ferred to the newly created Department of Homeland Security (“DHS”).

Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, § 471, 116

Stat. 2135, 2205 (2002). Because the relevant agency actions generally

took place before this transfer, we refer to the INS in this opinion.

LANDIN-MOLINA v. HOLDER 12187

motion to reopen his immigration proceedings and to stay his

voluntary departure. Landin argued that, by virtue of his

recent marriage to Ojeda, he was grandfathered into § 1255(i).5

The IJ denied the motion, concluding that Landin was not

grandfathered because his marriage to Ojeda occurred after

her status was adjusted. The Board of Immigration Appeals

(“BIA”) affirmed without opinion under 8 C.F.R.

§ 1003.1(e)(4).6

[1] On appeal, Landin again advances the argument that he

is entitled to grandfathered status under § 1255(i) based upon

his wife’s having adjusted her status via the grandfathering

regulations. In interpreting § 1255(i), we begin with the plain

language of the statute. See Altamirano v. Gonzales, 427 F.3d

586, 592 (9th Cir. 2005). Section 1255(i) provides that the

spouse of a qualifying principal alien is also eligible to seek

the benefits of that provision, if the derivative spouse is eligi-

ble for a visa under 8 U.S.C. § 1153(d). See 8 U.S.C.

§ 1255(i)(1)(B). In turn, § 1153(d) requires that the derivative

spouse be “accompanying or following to join” the principal

spouse. 8 U.S.C. § 1153(d).7 Thus, under the plain language

5

Landin further contended that he was eligible for adjustment of status

based on his substitution for another person in an approved labor certifica-

tion application filed by his employer. Landin concedes that substituted

beneficiaries in labor certification applications filed on or before April 30,

2001 are not grandfathered by regulation. See 8 C.F.R. § 245.10(j).

6

When the BIA affirms without opinion under its streamlining proce-

dures, the BIA endorses the result reached by the IJ, but not necessarily

the IJ’s reasoning. 8 C.F.R. § 1003.1(e)(4). The IJ’s decision is the final

agency determination. Id. Therefore, we review the IJ’s decision as we

would a decision of the BIA. See Lanza v. Ashcroft, 389 F.3d 917, 925

(9th Cir. 2004).

7

Section § 1153(d) provides in full:

A spouse or child as defined in subparagraph (A), (B), (C), (D),

or (E) of section 1101(b)(1) of this title shall, if not otherwise

entitled to an immigrant status and the immediate issuance of a

visa under subsection (a), (b), or (c) of this section, be entitled to

the same status, and the same order of consideration provided in

12188 LANDIN-MOLINA v. HOLDER

of § 1255(i), a derivative spouse is only eligible for an adjust-

ment of status under that provision if he or she is “accompa-

nying or following to join” the principal alien. As we

recognized in Santiago v. INS, with the phrase “accompany-

ing or following to join,” Congress intended to preserve fam-

ily unity by permitting an alien who qualifies for immigrant

status “to bring his family with him or to send for them later

when he ha[s] the ability to do so.” 526 F.2d 488, 490-91 (9th

Cir. 1975) (en banc) (interpreting 8 U.S.C. § 1153(a)(9)); see

also Matter of Kahn, 14 I&N Dec. 122, 123-24 (BIA 1972),

aff’d sub nom. Santiago, 526 F.2d 488.

[2] Likewise, under the grandfathering regulations, a prin-

cipal alien who is grandfathered into § 1255(i) may impart

grandfathered status to a spouse, again provided that the

spouse is eligible to receive a visa under § 1153(d). See 8

C.F.R. § 245.10(a)(1)(i). It follows, then, that if a derivative

spouse is not “accompanying or following to join” the princi-

pal grandfathered alien, the spouse is not entitled to grandfa-

thered status by virtue of the spousal relationship.

Landin waived the argument that he is “accompanying or

following to join” Ojeda. Indeed, he acknowledged before the

IJ that he was ineligible to accompany or follow to join his

wife within the meaning of § 1153(d) because the qualifying

spousal relationship did not exist at the time she adjusted sta-

tus to that of lawful permanent resident. Instead, Landin

the respective subsection, if accompanying or following to join,

the spouse or parent.

8 U.S.C. § 1153(d).

The words “accompany” and “following to join” are terms of art

defined in the regulations. A derivative beneficiary is considered to “ac-

company” the principal alien if he or she is in the physical company of the

principal or is issued an immigrant visa within six months of the date that

the principal receives immigrant status. 22 C.F.R. § 40.1(a)(1). After six

months, the derivative beneficiary is “following to join” the principal.

LANDIN-MOLINA v. HOLDER 12189

argued that the grandfathering provision was untethered from

the “accompanying or following to join” requirement. We

have trouble understanding this argument because it is at odds

with § 1255(i)’s specific reference to § 1153(d), which

requires that the spouse be “accompanying or following to

join” the principal alien. See K.V. Mart Co. v. United Food &

Commercial Workers Int’l Union, Local 324, 173 F.3d 1221,

1225 (9th Cir. 1999) (noting that statutes should be inter-

preted as whole, giving effect to each word, and should not

be interpreted in a manner that renders words or provisions

inconsistent, meaningless, or superfluous). Because Landin

does not argue that he is (or was) accompanying or following

to join his wife under § 1153(d), Landin cannot be a deriva-

tive spouse.

[3] As Landin conceded, he cannot satisfy the “accompany-

ing or following to join” rule, because his marriage occurred

after his wife adjusted to lawful permanent resident status.

See Matter of Naulu, 19 I&N Dec. 351, 352 n.1 (BIA 1986)

(“The relationship between the principal alien and the deriva-

tive beneficiary must exist before the principal alien gains

permanent resident status as well as at the time the derivative

beneficiary seeks entry as an immigrant or adjustment of sta-

tus.” (emphasis added)). The plain language of § 1153(d)

requires that the derivative “spouse” accompany or follow to

join the principal “spouse.” Implicitly there is a temporal ele-

ment of already being a “spouse.” Thus, § 1153(d) clearly

contemplates that the marital relationship exists before the

principal receives immigrant status. Such a construction is

consistent with our observation in Santiago that Congress

intended to “preserve” — i.e., maintain — the unity of exist-

ing families by permitting qualifying aliens to bring their fam-

ilies with them or to send for them later. 526 F.2d at 490. If

the marital relationship transpires after the principal receives

immigrant status, the putative derivative spouse cannot have

accompanied or followed to join a “spouse” because there

was simply no spouse to accompany or follow at the time the

principal adjusted status, and the language of § 1153(d)

12190 LANDIN-MOLINA v. HOLDER

implicitly requires that the derivative spouse be a “spouse”

before the principal adjusts status. Such is Landin’s situation:

being not married to Ojeda at the time she adjusted status, he

did not accompany or follow to join a principal spouse. Cf.

Matter of G, 7 I&N Dec. 731, 733-34 (BIA 1958) (“Both the

statutory language and the legislative history support the con-

clusion that the class or category granted the same preference

as the skilled immigrant by section 203(a)(1) was the existing

family, that is, the wife and children, of the principal appli-

cant.” (emphasis added)).

[4] Given this background, it is equally clear that for a

grandfathered alien to impart grandfathered status to a spouse,

the marriage must occur before the grandfathered alien adjusts

status. Our conclusion is reinforced by an interim rule imple-

menting and interpreting § 1255(i) and 8 C.F.R. § 1245.10(a),

which states that in order for an alien-spouse who is accompa-

nying or following to join a grandfathered alien to be consid-

ered grandfathered, the marital relationship between the two

aliens must “exist[ ] before the principal alien adjusts his or

her status.” 66 Fed. Reg. 16383, 16384 (March 26, 2001). In

a 1999 policy memorandum discussing grandfathering under

§ 1255(i), the INS explained that

[m]any aliens with pending, grandfathered petitions

or labor certification applications will marry or have

children after the qualifying petition or application

was filed but before adjustment of status. These

“after-acquired” children and spouses are allowed to

adjust under [§ 1255(i)] as long as they acquire the

status of a spouse or child before the principal alien

ultimately adjusts status. An alien who becomes the

child or spouse of a grandfathered alien after the

alien adjusts status or immigrates cannot adjust sta-

tus under [§ 1255(i)] unless he or she has an inde-

pendent basis for grandfathering.

Office of the Executive Association Commissioner, INS, U.S.

Dep’t of Justice, Accepting Applications for Adjustment of

LANDIN-MOLINA v. HOLDER 12191

Status Under Section 245(i), HQ 70/23.1-P, HQ 70/8-P at 5

(Jun. 10, 1990) (emphasis added), reproduced and interpreted

at 76 Interpreter Releases 1017, 1020 (July 2, 1999); see also

78 Interpreter Releases 553 (March 26, 2001).

This interim rule and guidance memorandum are entitled to

respect to the extent that they are persuasive. See Christensen

v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations

such as those in opinion letters — like interpretations con-

tained in policy statements, agency manuals, and enforcement

guidelines, all of which lack the force of law — do not war-

rant Chevron-style deference. Instead, interpretations con-

tained in formats such as opinion letters are “entitled to

respect” under our decision in Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944), but only to the extent that those inter-

pretations have the ‘power to persuade.’ ” (internal citations

omitted)); see also Karouni v. Gonzales, 399 F.3d 1163, 1171

n.11 (9th Cir. 2005) (stating that if the INS departed from a

guidance memorandum or rule without reason, such action

could be viewed as arbitrary, capricious, or an abuse of dis-

cretion).

[5] It is undisputed that Landin married his wife after she

adjusted to lawful permanent resident status; therefore,

Landin does not qualify as a grandfathered alien under estab-

lished INS rules and policies, which we view as persuasive.

Indeed, if grandfathered aliens who adjusted to lawful perma-

nent resident status could impart grandfathered status to rela-

tives acquired after the adjustment occurred, then § 1255(i)’s

filing cut-off date would be nullified with respect to those

individuals. Cf. Balam-Chuc v. Mukasey, 547 F.3d 1044,

1049-1050 (9th Cir. 2008) (holding § 1255(i)’s April 30, 2001

sunset provision was a fixed deadline, and that § 1255(i) is a

statute of repose not subject to equitable tolling). If we were

to accept Landin’s interpretation of the statute, lawful perma-

nent residents who adjusted to such status under § 1255(i) via

the grandfathering regulations would be able to perpetually

impart grandfathered status to others.

12192 LANDIN-MOLINA v. HOLDER

B. Estrada

Estrada, who entered the United States without inspection

in 1987, worked for a number of years as an agricultural

worker in Northern California. In 1999, the INS initiated

removal proceedings against Estrada; she conceded remov-

ability and designated Mexico as the country of removal.

Estrada informed the IJ that she would seek adjustment of sta-

tus, but her path was full of contingencies. Initially, Estrada’s

plan required that her fiancé, Guadalupe Castro: (1) finalize

his divorce from his then wife, (2) wed Estrada, (3) complete

naturalization, and (4) petition for Estrada’s legal status in the

United States. Estrada’s hope was that ultimately she would

be able to adjust her status based upon the petition filed by Cas-

tro.8

In fact, Castro divorced in the summer of 2000, and he and

Estrada married in the fall of that year. Castro became a natu-

ralized U.S. citizen in May 2002, and in the following Octo-

ber he filed an I-130 Petition for Alien Relative on Estrada’s

behalf.

Nonetheless, in June 2004 — after numerous other hearings

and continuances, and more than four years after Estrada’s

first appearance in immigration court — the IJ denied Estra-

da’s adjustment application and granted her the privilege of

8

Under the INA, certain immediate relatives of U.S. citizens and lawful

permanent residents may be issued immigrant visas or otherwise acquire

lawful permanent resident status. For an alien to qualify as an immediate

relative, the U.S. citizen or lawful permanent resident must file a Form I-

130, known now as a “Petition for Alien Relative”, on the alien’s behalf,

and the petition must be approved by the U.S. Citizenship and Immigra-

tion Services (“USCIS”). See 8 C.F.R. § 204.1(a); see also Diouf v.

Mukasey, 542 F.3d 1222, 1225 n.1 (9th Cir. 2008). The USCIS’s approval

of a Form I-130 petition, however, does not make an alien automatically

eligible for adjustment of status under § 1255(i). Among other require-

ments, an immigrant visa must be “immediately available.” 8 U.S.C.

§ 1255(i)(2)(B); see also Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.

2005). The wait time for these immigrant visas can be considerable.

LANDIN-MOLINA v. HOLDER 12193

voluntary departure. The IJ reasoned that, even if the I-130

petition were approved, Estrada would not be able to adjust

her status because the petition was filed after April 30, 2001

— the sunset date for § 1255(i).9

Estrada argued that her 1989 registration for the RAW pro-

gram served to backdate her I-130 petition. The IJ rejected

this argument, as did the BIA when it dismissed Estrada’s

appeal. The BIA concluded that Estrada’s registration for the

RAW program did not grandfather her into § 1255(i) because

“registry in the RAW program is not a petition for a labor cer-

tification or an application for adjustment, but rather it is a

registry for individuals who may or may not be chosen to

petition for a labor certification should a labor shortfall

require the need to replenish the workforce.”

On appeal, Estrada again argues that her 1989 registry

under the RAW program renders her grandfathered into

§ 1255(i) and thus eligible to apply for adjustment of status.

Specifically, Estrada contends that registry for the RAW pro-

gram is “at its core” similar to filing a qualifying labor certifi-

cation application.

In 1986, Congress enacted INA § 210A and authorized the

RAW program for fiscal years 1990 to 1993. Immigration

Reform and Control Act of 1986, Pub. L. 99-603, tit. III,

§ 303(a), 100 Stat. 3359, 3422-31 (1986). The RAW program

was meant to “provid[e] additional seasonal agricultural

workers to United States agricultural employers to alleviate

possible shortages of workers for perishable crops. The pro-

gram allowed the government to replenish the supply of farm-

workers by providing foreign workers with legal resident

9

Estrada’s I-130 petition was approved in October 2004. Such approval

does not affect the legal analysis of whether Estrada qualifies as a grandfa-

thered alien who is eligible to adjust her status under § 1255(i). The

approval of her I-130 petition would be relevant only if Estrada were

grandfathered into § 1255(i).

12194 LANDIN-MOLINA v. HOLDER

status if the Secretaries of Agriculture and Labor determined

that a shortage of such workers existed.” 59 Fed. Reg. 24031,

24031-32 (May 10, 1994). Specifically, the Secretaries of

Labor and Agriculture were empowered to “jointly determine

the number (if any) of additional aliens who should be admit-

ted to the United States or who should otherwise acquire the

status of aliens lawfully admitted for temporary residence” in

order to “meet a shortage of workers to perform seasonal agri-

cultural services.” 8 U.S.C. § 1161(a)(1), repealed by Pub. L.

103-416, tit. II, § 219(ee)(1), 108 Stat. 4305, 4319 (1994). In

turn, the Attorney General was to “provide for the admission

for lawful temporary resident status, or for the adjustment of

status to lawful temporary resident status, of a number of

aliens equal to the shortage number (if any, determined under

subsection (a) of this section)” for each fiscal year, subject to

certain limitations. Id. § 1161(c)(1). Thus, a RAW was

defined as “[a]ny individual granted temporary resident status

or permanent resident status under [8 U.S.C. § 1161(c)] of the

Act.” 8 C.F.R. § 210a.1(i).

The implementing regulations for the RAW program estab-

lished a registration of eligible aliens “intended to provide an

adequate number of persons to satisfy shortage number

requirements for several years.” 8 C.F.R. § 210a.3(a). The

registration period lasted from September 1, 1989 to Novem-

ber 30, 1989. Id. § 210a.3(b). If a shortage number was

announced, registrants were to be selected at random and

invited to petition for temporary residence in accordance with

various priority classes. Id. §§ 210a.2(b), 210a.3(h).

[6] We agree with the BIA that Estrada’s status as a mere

registrant for the RAW program does not grandfather her into

§ 1255(i), because registration for the RAW program does not

qualify as a labor certification application under 8 U.S.C.

§ 1182(a)(5)(A). Given the parameters and particulars of the

RAW program, and specifically its registration process,

Estrada was not only one step removed from having filed the

requisite application for labor certification, she was not yet

LANDIN-MOLINA v. HOLDER 12195

even qualified to file such an application. Rather, Estrada was

merely a member of a pool of aliens who might, but might

not, be granted the opportunity to petition to become a RAW

should a labor shortage arise.

[7] Our conclusion is buttressed by the implementing regu-

lations, which specified that “[n]either employment authoriza-

tion nor any other benefit shall derive from filing a

registration card, being placed in a registry pool, or being

invited to petition for RAW status.” 8 C.F.R. § 210a.3(g).

Estrada’s own registration card, a Form I-807, repeated a sim-

ilar disclaimer. Significantly, during the three years during

which the RAW program existed, a lack of a sufficient num-

ber of agricultural workers was never found to exist. See 59

Fed. Reg. at 24032. Thus, no registrant ever emerged from the

registration pool to be invited to petition for RAW status. As

such, “no immigration benefits were ever granted through the

RAW program.” Id.

[8] Estrada argues that we should construe the statute and

regulations broadly — deeming the registry for the RAW pro-

gram functionally equivalent to having filed a labor certifica-

tion application — in order to effectuate the purpose of

§ 1255(i), which Estrada asserts to be the preservation and

facilitation of family unity. Although we recognize that

removal of Estrada from this country will dislocate her from

her family, home, and community, the plain language of the

statute and regulations simply cannot be stretched as far as

Estrada would like. The grandfathering provisions relating to

§ 1255(i) encompass only “petitions” and “applications for

labor certifications” which were “approvable when filed.” 8

C.F.R. § 245.10(a)(1)(i); see also 8 U.S.C. § 1255(i)(1).

Unfortunately for Estrada, simply registering for the possibil-

ity of petitioning to become a RAW cannot satisfy the

requirement of having filed an application for labor certifica-

tion that was approvable when filed.

12196 LANDIN-MOLINA v. HOLDER

CONCLUSION

Landin and Estrada are not grandfathered into § 1255(i),

and therefore neither is eligible to apply for adjustment of sta-

tus to lawful permanent resident of the United States. The

petitions for review are DENIED.