Oliveira v. Wilkinson ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-1258
MARCIO BATISTA DE OLIVEIRA and DEBORA DOS SANTOS OLIVEIRA,
Petitioners,
v.
ROBERT M. WILKINSON,
Acting Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
and Thompson, Circuit Judge.**
Stephanie Marzouk for petitioners.
Todd J. Cochran, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Joseph H. Hunt, Assistant Attorney General, Civil Division, and
John S. Hogan, Assistant Director, Office of Immigration
Litigation, were on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Robert M. Wilkinson has been substituted as the respondent.
** Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
February 22, 2021
HOWARD, Chief Judge. Marcio and Debora Oliveira, a
husband and wife who are natives and citizens of Brazil, petition
for review of a ruling of the Board of Immigration Appeals ("BIA")
affirming the determination of an Immigration Judge ("IJ") that
they were not eligible for an adjustment of status pursuant to the
"grandfathering" provisions of § 245(i) of the Immigration and
Nationality Act ("INA"). 8 U.S.C. § 1255(i). The Oliveiras argue
that the BIA applied incorrect standards in determining that a
labor certification application ("LCA") filed on behalf of Marcio
Oliveira was not "approvable when filed." The Oliveiras also argue
that the BIA erred in denying their motion to remand, which
contained additional evidence.
Because the IJ and BIA did not appropriately focus their
inquiry, we grant the petition for review and remand to the BIA
for further proceedings.
I.
We first recount the underlying facts and then, because
our task is to evaluate their decisions, summarize the proceedings
before and judgments of the IJ and BIA.
A. Factual History
Marcio and Debora Oliveira independently came from
Brazil to the United States on tourist visas in 2000, but both of
them overstayed their visas. The two met and married in 2002 and
have three children who are United States citizens.
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Sometime in late 2000 or early 2001, Marcio Oliveira
became aware of the INA and the "grandfathering" provisions of
§ 245(i) that would allow individuals meeting specified criteria
to remain legally in the United States with qualifying visa
petitions or labor certification applications filed on or before
April 30, 2001. Oliveira contacted Florida attorney Alan Glueck
and was told that Glueck would assist Oliveira in finding an
employer with a qualifying job opening who would then file an LCA
on behalf of Oliveira. Glueck's office requested, and Oliveira
provided, records about Oliveira's employment in Brazil with an
accounting company prior to coming to the United States. With
Glueck acting as its agent, NF Business Corporation filed an LCA
naming Oliveira as the beneficiary for the position of "Clerk-
Typist." The LCA had a priority date of April 24, 2001.
After the LCA was filed, Glueck was investigated and
subsequently disbarred for assisting his business partner in the
unlicensed practice of law. Another Florida attorney, Scott
Kimmel, contacted Oliveira to inform him of the investigation into
Glueck. Kimmel's office connected Oliveira with an individual
named Ron Thomas, whom Oliveira understood to be investigating
Glueck on behalf of the federal government. Oliveira spoke with
Thomas on the phone and answered Thomas's questions about Glueck.
Oliveira understood that Kimmel and his office would be taking
over Glueck's representation of Oliveira in connection with the
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LCA. Oliveira testified at the hearing before the IJ that he made
attempts to get in touch with Kimmel about the LCA, but never
received any updates or copies of the relevant paperwork. As a
result, the Oliveiras lost track of the LCA and its status.
The record before the IJ did not include a copy of the
LCA itself or any paperwork regarding the approval or denial of
the LCA. We do know, however, that Oliveira never received a visa
as a result of the LCA, never worked for NF Business Corporation,
never visited its offices, was never extended a formal job offer
by NF Business Corporation, never had an official job interview
with NF Business Corporation, and, at the hearing before the IJ,
did not have an understanding of the company's business. Oliveira
also did not have a working understanding of the responsibilities
associated with the prospective job, beyond knowing that "it was
like an office job" and testifying that he believed that Glueck
and NF Business Corporation had chosen the job based on the
qualifications and work experience that Oliveira had provided to
Glueck and his colleagues.
In September 2004, the Oliveiras were each served with
a Notice to Appear, neither of which contained a date or time for
a hearing. In 2005, an IJ consolidated the Oliveiras' cases and
the Oliveiras admitted the factual allegations and conceded the
charges of removability in their respective Notices to Appear. In
2015, the Boston & Maine Fish Company filed a new LCA naming
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Oliveira as the beneficiary, and on April 12, 2016, the Oliveiras
applied to adjust their statuses pursuant to § 245(i).
B. The IJ's Decision
After a hearing in which the Oliveiras were represented
by counsel and Marcio Oliveira testified, the IJ issued an oral
decision denying the Oliveiras' application for adjustment of
status and ordering them removed to Brazil. Relying on our
decision in Santana v. Holder, 566 F.3d 237 (1st Cir. 2009), the
IJ held that the Oliveiras bore the burden of demonstrating that
the LCA was "approvable when filed," meaning it was: (1) properly
filed, (2) meritorious in fact, and (3) non-frivolous. See 8
C.F.R. § 245.10(a)(3). The IJ found that Oliveira had not met
that burden with respect to the "meritorious in fact" requirement
based on the lack of documentary evidence provided by the Oliveiras
and the lack of a relationship between Marcio Oliveira and NF
Business Corporation. The IJ expressly declined to address whether
the LCA was properly filed or non-frivolous. The IJ also did not
discuss the BIA decision in Matter of Muhammad Imran Butt ("Matter
of Butt"), 26 I. & N. Dec. 108 (BIA 2013), in which the BIA set
forth a standard to determine whether an LCA, as distinct from a
visa petition, was meritorious in fact. The IJ stated that "[t]his
is a case that comes down to the respondent simply being unable to
meet his burden."
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C. The BIA's Decision
On February 8, 2019, the BIA affirmed the ruling of the
IJ. The BIA both adopted the IJ's ruling ("For the reasons stated
by the Immigration Judge, we decline to disturb the Immigration
Judge's determination.") and added its own legal rationale. The
BIA quoted its prior decision, Matter of Butt, at length, stating
that:
A labor certification is 'meritorious in fact' if it was
'properly filed' and 'non-frivolous, []so long as a bona
fide employer/employee relationship exists where the
employer has the apparent ability to hire the sponsored
alien and where there is no evidence that the labor
certification is based on fraud.'
(quoting Matter of Butt, 26 I. & N. at 116). The BIA concluded
that, although he "acted with good faith and with due diligence,"
because Oliveira (1) had never met with the employer, (2) did not
know the job requirements, and (3) never received a job offer from
the employer, he had failed to demonstrate the existence of the
employment relationship required by 8 C.F.R. § 245.10(a)(3) and
Matter of Butt. Like the IJ, the BIA declined to address whether
the LCA was "properly filed" or "non-frivolous," addressing only
the "meritorious in fact" prong.
While their appeal to the BIA was pending, the Oliveiras
filed a Motion to Remand containing new evidence that they claimed
had been previously unavailable. The proffered evidence showed
that Attorney Glueck's business partner, Elyane Bechtinger, was
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named as an officer of NF Business Corporation in 2002. Oliveira
also offered an additional affidavit recollecting that he had
spoken to Bechtinger about the prospective job at NF Business
Corporation as part of his dealings with Glueck around the time
that Oliveira submitted paperwork regarding his previous work
experience, and that Oliveira's conversation with Bechtinger had
served as a job interview for the position at NF Business
Corporation, which she offered to him.
The BIA denied the Oliveiras' Motion to Remand on the
basis that the Oliveiras had failed to show that the evidence was
previously unavailable. The BIA also found that the evidence would
not change the outcome of the case because it was insufficient to
show that the required employer/employee relationship existed.
II.
We review the BIA's findings of law de novo and its
findings of fact under the substantial evidence standard, "asking
whether the BIA's determination is 'supported by reasonable,
substantial and probative evidence on the record considered as a
whole.'" Santana, 566 F.3d at 240 (quoting De Acosta v. Holder,
556 F.3d 16, 20 (1st Cir. 2009)); see also Aguilar-Escoto v.
Sessions, 874 F.3d 334, 336-37 (1st Cir. 2017). "We consider BIA
and IJ decisions together where the Board adopts and supplements
the IJ's reasoning." Aguilar-Escoto, 874 F.3d at 336 (internal
quotation marks omitted) (citing Martinez v. Holder, 734 F.3d 105,
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111 n.15 (1st Cir. 2013)). We review the BIA's decisions on
Motions to Remand (or Reopen) for an abuse of discretion. See
Pakasi v. Holder, 577 F.3d 44, 48 (1st Cir. 2009); see also Ming
Chen v. Holder, 722 F.3d 63, 66 (1st Cir. 2013).
III.
The Oliveiras make three arguments on appeal: (1) the
BIA applied an incorrect standard in determining whether the LCA
was meritorious in fact; (2) the BIA erred in finding that the LCA
was not meritorious in fact; and (3) the BIA erred in refusing to
remand on the basis of the Oliveiras' additional evidence. Because
we agree with the Oliveiras' first argument, we need not address
the other two.
The Oliveiras argue that they are eligible for
adjustment of status, "a process whereby certain aliens physically
present in the United States may obtain permanent resident status
. . . without leaving the United States." Santana, 566 F.3d at
238 (alterations in original) (quoting De Acosta, 556 F.3d at 18)
(internal quotation marks omitted). The INA provides that
individuals meeting certain requirements are eligible for
adjustment of status through "grandfathering," and therefore are
not removable. See 8 U.S.C. § 1255(i). To qualify for
grandfathering, an individual must have been physically present in
the United States on December 21, 2000, and be the beneficiary of
a visa petition or LCA that was filed on or before April 30, 2001.
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See 8 C.F.R. § 245.10 (setting forth the specific requirements for
grandfathering under INA § 245(i)). The visa petition or LCA must
have been both (i) properly filed and (ii) approvable when filed.
See 8 C.F.R. § 245.10(a)(1)(i).
The parties agree that the Oliveiras were physically
present in the United States as of December 21, 2000, and an LCA
filed by NF Business Corporation naming Marcio Oliveira as the
beneficiary was filed with a priority date of April 24, 2001.
Therefore, if that April 24, 2001 LCA was approvable when filed
and properly filed, Marcio Oliveira and, derivatively, Debora
Oliveira are eligible to adjust their respective statuses under
§ 245(i).
We agree with the IJ and the BIA that, for an LCA to be
approvable when filed, it must have been, on the date it was filed
and under the circumstances that existed at the time of filing:
(1) properly filed, (2) meritorious in fact, and (3) non-frivolous.
8 C.F.R. § 245.10(a)(3) (defining "frivolous" to mean "patently
without substance"). An LCA that meets the above requirements
qualifies an individual for grandfathering even if "later
withdrawn, denied, or revoked due to circumstances that have arisen
after the time of filing." Santana, 566 F.3d at 240 (quoting 8
C.F.R. § 245.10(a)(3)) (internal quotation marks omitted).
The BIA and IJ expressly declined to address whether the
LCA was properly filed or non-frivolous. Instead, they based the
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denials of relief solely on their finding that the LCA was not
meritorious in fact.
Cases examining the meritorious-in-fact standard have
generally interpreted it to require that the petitioner
demonstrate that the visa petition or LCA qualified for approval
under the standards in effect at the time it was filed. See, e.g.,
Agor v. Sessions, 751 F. App'x 60, 62 (2d Cir. 2018) ("The issue
is whether the petition merited a legal victory upon filing, even
if it was later abandoned or denied based on a change in
circumstances." (internal quotation marks omitted)); Ogundipe v.
Mukasey, 541 F.3d 257, 261 (4th Cir. 2008) ("[A] visa petition is
meritorious in fact for purposes of grandfathering under 8 C.F.R.
§ 1245.10 if, based on the circumstances that existed at the time
the petition was filed, the beneficiary of the petition qualified
for the requested classification."); Butt v. Gonzales, 500 F.3d
130, 135 (2d Cir. 2007) (reading the standard to "requir[e] that,
based on the facts as they exist at the time of filing, the
application should be granted"); Ali v. Gonzales, 197 F. App'x
485, 488 (7th Cir. 2006) (declining to review an IJ's denial of a
petition to adjust status where the petitioner's application "on
its face showed that he was not minimally qualified for the job");
Bustos v. Napolitano, 2012 WL 5354117, at *4 (D. Ut. Oct. 29, 2012)
(remanding to determine whether the LCA "merit[ed] a legal victory"
or "ha[d] legal worth" (internal quotation marks omitted)).
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In Matter of Butt, the BIA set forth a standard for
making that determination in the case of LCAs specifically,
focusing on the flexible, collaborative nature of the LCA approval
process in the late 1990s and early 2000s. 26 I. & N. Dec. at
114-117. The BIA looked to historical efforts by the former
Immigration and Naturalization Service ("INS") to consult with the
Department of Labor ("DOL") to determine what makes an LCA
"approvable when filed." Id. at 115-16. The BIA summarized:
[T]he DOL indicated that the agency does not have the
ability to state definitively whether a certification
will be meritorious until its adjudication is
complete. . . . Therefore, the former INS adopted an
approach that focused on whether a [labor certification]
was "non-frivolous" and "properly filed" in presuming
that most labor certifications meeting these
requirements would also satisfy the "meritorious in
fact" requirement for grandfathering purposes.
Id. at 116. The BIA then adopted its own definition of
"meritorious in fact" in accord with the INS's approach, holding:
[W]e conclude that a labor certification is "meritorious
in fact" if it was "properly filed" and "non-frivolous,"
so long as a bona fide employer/employee relationship
exists where the employer has the apparent ability to
hire the sponsored alien and where there is no evidence
that the labor certification is based on fraud. . . .
In other words, a labor certification will be presumed
to be "meritorious in fact" if it was "properly filed"
and "non-frivolous," absent any apparent bars to its
approval. Accordingly, a "properly filed" and "non-
frivolous" labor certification will generally be
"meritorious in fact" and thus, in turn, will also be
"approvable when filed."
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Id. at 116-17.1
The Oliveiras interpret Matter of Butt to create a
burden-shifting standard under which the Oliveiras' initial burden
is only to demonstrate that the LCA was properly filed and non-
frivolous. After that burden is satisfied, the Oliveiras argue,
the burden shifts to the agency to raise any apparent bars to the
approval of the LCA. If the government presents such apparent
bars, the burden would presumably shift back to the Oliveiras to
demonstrate that the LCA nonetheless merited approval. The
Oliveiras therefore argue that both the IJ and the BIA erred in
focusing on whether the Oliveiras met a burden on the "meritorious
in fact" prong as an initial matter.
Putting aside whether the Administrative Procedure Act
would require the BIA to abide by its previous decisions, we
decline to adopt the Oliveiras' proposed burden-shifting framework
for three reasons. First, the Oliveiras have read Matter of Butt
too mechanically. Matter of Butt itself never mentions shifting
burdens. It does say that an LCA will be "presumed" to be
1 Another consideration unstated in Matter of Butt but
relevant to the standard for determining whether an LCA is
meritorious in fact is that, unlike the approval of a visa
petition, the approval of an LCA is governed by regulations
promulgated by the DOL, not by the DHS or the DOJ. See generally
20 C.F.R. § 656.21. Those DOL regulations are not necessarily
within the area of special expertise for the IJ and BIA, and the
BIA may be hesitant to direct IJs to perform full explorations of
the DOL regulations as they were in place and applied in 2001.
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meritorious in fact, but that presumption comes only "absent any
apparent bars to its approval." 26 I. & N. Dec. at 116. It also
clearly requires "a bona fide employer/employee relationship . . .
where the employer has the apparent ability to hire the sponsored
alien." Id.
Second, and more importantly, such a rigid burden-
shifting framework would be inconsistent with our precedent and
the caselaw of other circuits, which keep the burden on the
petitioner and focus more holistically on the legal merit and
approvability of both visa petitions and LCAs. Although it was in
the context of a visa petition instead of an LCA, we have
previously rejected the kind of burden-shifting proposed by the
Oliveiras, stating that "[t]he [petitioners'] argument that this
record evidence cannot be relied upon to deny them grandfathering
amounts to an attempt to shift their burden of establishing
eligibility for grandfathering to one requiring the agency to
disprove eligibility for grandfathering. As we have said, the
burden was the petitioners' to bear." Santana, 566 F.3d at 241.
There, we kept a holistic focus on the legal merit of the visa
petition. Id. at 240-41. We found that the BIA's denial of
grandfathering was supported by substantial evidence where, in the
initial visa approval process, a notice of intent to revoke the
petition identified "derogatory information" that cast doubt on
the approvability of the petition. Id. at 241.
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Similarly, we have rejected a petition challenging a BIA
decision that denied grandfathering on the basis of an LCA, stating
that "a finding of 'identified gaps' in a petitioner's application,
where the petitioner has [had] . . . opportunity to explain the
gaps but failed to do so, was sufficient to show that the
application was not meritorious in fact." Da Cunha v. Mukasey,
304 F. App'x 892, 895 (1st Cir. 2008) (citing Echevarria v.
Keisler, 505 F.3d 19 & n.3 (1st Cir. 2007)); see also De Acosta,
556 F.3d at 19-20 (keeping the burden on the petitioner while
focusing on the definition of "properly filed").
Other circuits have also embraced a holistic approach to
determining whether an LCA is "approvable when filed," and have
placed the burden squarely on the petitioner. See Hyeng Kab Lee
v. Holder, 407 F. App'x 638, 641 (4th Cir. 2010) (remanding to the
BIA to "review the 'totality of the circumstances' surrounding a
labor certificate"); Ali, 197 F. App'x at 488 (upholding a
determination that an LCA was not "meritorious in fact" where the
petitioner was "not minimally qualified for the job"); Bustos,
2012 WL 5354117, at *4 (remanding to determine whether the LCA
"merit[ed] a legal victory" or "ha[d] legal worth").
Finally, we note that the rigid framework proposed by
the Oliveiras could create an incentive for petitioners to withhold
information about an LCA to prevent the government from using that
information to identify apparent bars to approvability. This
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would, in effect, make it more difficult for the IJ, the BIA, and
reviewing courts to determine whether an LCA was approvable when
filed.
We therefore decline to adopt a burden-shifting
framework for determining whether an LCA is approvable when filed.
Instead, we hold, consistent not only with Matter of Butt but also
with Santana, Da Cunha, and Echevarria, that determining whether
an LCA is approvable when filed requires a holistic inquiry that
keeps the burden on the petitioners and focuses on whether the LCA
merited a legal victory at the time and under the circumstances in
which it was filed. A petitioner bears the burden of demonstrating
that the LCA in question did not have the kinds of "identified
gaps" we referenced in Da Cunha, 304 F. App'x at 895, "apparent
bars" the BIA referenced in Matter of Butt, 26 I. & N. Dec. at
116, or "derogatory information" we referenced in Santana, 566
F.3d at 241.
That holistic inquiry, however, is not a license to deny
grandfathering based on any perceived shortcoming in an LCA. In
order to form a basis for the denial of an adjustment of status,
the identified gap, apparent bar, or derogatory information must
be tied to the evaluation of the legal merit of the LCA. The
ultimate subject of the inquiry must always be whether an LCA
should have been approved by the DOL at the time and under the
circumstances in which it was filed.
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Here, the IJ and the BIA did not keep their focus on
that inquiry in the course of their evaluation of Oliveira's LCA.
The IJ was correct that the Oliveiras bore the burden of
demonstrating that the LCA was meritorious in fact, and it
identified facts that it concluded undermined the LCA. But the IJ
did not tie those facts to the standards or practices used by the
DOL to approve an LCA in 2001. Similarly, the BIA cited Matter of
Butt and identified facts to support its conclusion that "there is
insufficient evidence that the employment relationship existed,"
but it failed to explain what aspects of an "employment
relationship" it was examining, or how the facts that it cited
demonstrated the lack of such a relationship. See, e.g., Browning-
Ferris Indus. of California, Inc. v. Nat'l Labor Relations Bd.,
911 F.3d 1195 (D.C. Cir. 2018) (exploring the nature of employer-
employee relationships over the course of more than 40 pages).
After all, the beneficiary of an LCA cannot become an employee or
enter into an employment relationship until after the LCA is
approved. See 20 C.F.R. §§ 656.20-656.32 (2001) (governing the
approvability of LCAs in 2001 and contemplating that the
application process will take place before employment commences).
By contrast, in Matter of Butt itself, the BIA focused on the
apparent ability of the employer to hire the petitioner, tying
that focus to the former INS's inquiry into the DOL's LCA approval
procedures. 26 I. & N. Dec. at 116.
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The focus of the BIA's inquiry in this case is further
obscured by its unexplained conclusion that the additional
evidence proffered by the Oliveiras in their Motion to Remand would
be insufficient to change the BIA's determination that the
requisite employer/employee relationship did not exist.
Oliveira's additional affidavit claimed: (1) at the time the LCA
was filed, NF Business Corporation was a Massachusetts corporation
in good standing, (2) Elyane Bechtinger was an officer of NF
Business Corporation in 2002, not long after the LCA was filed,
(3) Bechtinger interviewed Oliveira for a job with NF Business
Corporation, and (4) at the conclusion of the interview, Bechtinger
offered Oliveira the job. The BIA thus necessarily concluded,
without explanation, that Oliveira would lack the requisite
employer/employee relationship even if he interviewed with an
officer of the employer who filed the LCA, a corporation in good
standing, and that officer offered him the job referenced in the
LCA. That conclusion further muddies the BIA's analysis, rendering
it unclear what kind of employer/employee relationship the BIA is
looking to find, what the "identified gaps" in the LCA were, what
the "apparent bars" to its approvability were, or what the
"derogatory information" about it was. The BIA's decision thus
obscures the relationship between any perceived gaps and the
standards or procedures used by the DOL for approving LCAs in April
2001.
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By contrast, in Da Cunha we noted that "the IJ identified
a specific discrepancy in the labor certification application."
304 F. App'x at 895. The "identified gap" in that case was the
prospective employer's "inactive" status with the relevant state
department of labor and the employer's failure to pay unemployment
taxes for its workers. Id. Unlike here, then, the "identified
gap" in Da Cunha tied directly to the prospective employer's
ability to hire the petitioner.
Similarly, in Echevarria, the gaps that supported the
denial of grandfathering were identified in the first instance by
the immigration officer evaluating the visa petition. 505 F.3d at
18-20. The immigration officer relied on those gaps to deny the
visa petition, making clear the relevance of those gaps to the
petition's legal merit. Id. Here, neither the BIA nor the IJ
connected the perceived factual deficiencies to the standards and
procedures governing the LCA's legal merit. See also Ogundipe,
541 F.3d at 262 (tying the determination that the visa petition
was not meritorious in fact to the specific requirements of 8
C.F.R. § 204.5(m)(4)).
In examining petitions for review of BIA decisions, we
have held that "our review is limited to the reasoning articulated
below." Mejia v. Holder, 756 F.3d 64, 69 (1st Cir. 2014) (quoting
Patel v. Holder, 707 F.3d 77, 80 n.1 (1st Cir. 2013)). "A reviewing
court should judge the action of the BIA based only on reasoning
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provided by the agency, not based on grounds constructed by the
reviewing court, and that basis must be set forth with such clarity
as to be understandable." Mihaylov v. Ashcroft, 379 F.3d 15, 21
(1st Cir. 2004) (internal quotation marks and citations omitted);
see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013)
(remanding to the BIA because it had failed to present "a reasoned
analysis of the evidence as a whole" (internal quotation marks
omitted)).
The BIA and the IJ have not met that standard here.
While they correctly undertook a holistic inquiry into
approvability and kept the burden on the petitioners to demonstrate
that the LCA was "meritorious in fact," neither the IJ nor the BIA
articulated reasoning that connected the facts and circumstances
of the Oliveiras' LCA to the standards and procedures used to
approve LCAs in 2001.
IV.
We therefore grant the petition for review, vacate the
order of the BIA, and remand to the BIA for further proceedings
consistent with this opinion.2
2 Because we decide that the BIA has failed to apply the
correct standard for determining whether an LCA is meritorious in
fact, we do not decide whether the evidence supported the BIA's
determination that the LCA was not meritorious in fact or whether
the BIA's denial of the Oliveiras' Motion to Remand was an abuse
of discretion. Nor do we decide any other issues raised by the
petitioners.
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