Matovski v. Gonzales

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 1-140 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 tell 1 —holds that an *741 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 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”— *742 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 1-140 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 1-140 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.

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 *743 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.

. 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 *741 today’s actual, albeit implicit, holding is that an initially-valid-and-still-pending 1-140 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. § 11540 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.

. Relying on this same reasoning, the Fourth Circuit recently held that an immigration judge “necessarily has jurisdiction to make a § 2040 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 § 2040 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 § 2040 portability decision in the first instance, then "it would effectively deny the benefits of § 2040 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 § 2040 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 § 2040 ... [then], because administrative closure requires the consent of DHS, the alien's access to § 2040 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 § 2040.

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.