Asim Chaudhry v. Eric Holder, Jr. , 705 F.3d 289 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3350
A SIM C HAUDHRY, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A97-614-000, -001, -002 & -003
A RGUED S EPTEMBER 19, 2012—D ECIDED JANUARY 17, 2013
Before B AUER, K ANNE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Petitioners Asim Chaudhry, his
wife Neelofer Asim, and their two minor children—all
citizens of Pakistan—came to the United States in 2003
as nonimmigrant visitors. Three years later, Chaudhry
filed an application to adjust his status to “lawful perma-
nent resident.” The United States Citizenship and Immigra-
tion Services (CIS) rejected Chaudhry’s application be-
2 No. 11-3350
cause, by statute, applicants who have accrued more
than 180 days without “lawful status” lose their
eligibility for adjustment of status. As CIS calculated
it, Chaudhry’s nonimmigrant status expired on Janu-
ary 21, 2005, some 17 months before he filed to become
a permanent resident. Chaudhry argued to the Board of
Immigration Appeals that he enjoyed lawful status until
considerably later, through December 13, 2005. His view
depends on the possibility of stacking a number of ad-
justment applications. Holding that a pending adjust-
ment application does not toll the accrual of days
without “lawful status” for adjustment of status pur-
poses, the Board rejected Chaudhry’s petition. We con-
clude that the Board’s interpretation of the law is rea-
sonable and we thus deny the petition for review.
I
Chaudhry and his family (to whom we refer collec-
tively as Chaudhry unless the context requires otherwise)
lawfully entered the United States on June 4, 2003, pursu-
ant to Asim Chaudhry’s B-1 visa. That document gave
Chaudhry lawful nonimmigrant status as a temporary
business visitor through September 6, 2003. See 8 U.S.C.
§ 1101(a)(15)(B). Before the expiration of that status,
Chaudhry and his then-employer Amtal Incorporated
filed a Form I-129 petition, seeking to change Chaudhry’s
status from B-1 to L-1 (skilled worker). See 8 U.S.C.
§ 1101(a)(15)(L). CIS approved that petition on January 21,
2004; this had the effect of extending Chaudhry’s lawful
nonimmigrant status through January 21, 2005.
No. 11-3350 3
In the meanwhile, Chaudhry began the process of
becoming a lawful permanent resident. On January 14,
2004, Amtal filed a Form I-140 visa petition that sought
to designate Chaudhry a multi-national executive or
manager, while Chaudhry simultaneously submitted a
Form I-485 application for adjustment of status to
lawful permanent resident. This “concurrent filing,” if
approved, would have allowed Chaudhry and his
family (as derivative beneficiaries) to become lawful
permanent residents pursuant to 8 U.S.C. § 1255. For
reasons that are not altogether clear, Chaudhry and
Amtal then submitted a second set of I-140 and I-485
forms in June 2005. CIS rejected both of these adjust-
ment applications on December 13, 2005, because by
then Chaudhry no longer worked for Amtal.
After leaving Amtal, Chaudhry began working for
Sarus Oil. Supported by Sarus, Chaudhry submitted a
third adjustment-of-status application on May 25, 2006.
CIS approved Sarus’s I-140 employment-based visa
petition in 2007, but on March 7, 2008, it rejected
Chaudhry’s I-485 adjustment-of-status application. The
application was denied, CIS explained, because more
than 180 days had elapsed between the expiration of
Chaudhry’s lawful nonimmigrant status on January 21,
2005, and the filing of his final adjustment application
on May 25, 2006. (Chaudhry had never formally
extended or renewed his L-1 visa.) He was therefore
ineligible to become a lawful permanent resident by
virtue of 8 U.S.C. § 1255(k), which prohibits adjustment
of status for applicants who “for an aggregate period
exceeding 180 days [have] failed to maintain, continu-
ously, a lawful status.”
4 No. 11-3350
Removal proceedings for Chaudhry and his family
then commenced before an Immigration Judge (IJ). They
conceded removability as alleged in the Notices to
Appear, but Chaudhry renewed his application for ad-
justment of status. Chaudhry argued that he remained
in “lawful status” for purposes of 8 U.S.C. § 1255(k)
through December 13, 2005, the date CIS rejected his
first and second adjustment applications. If that were
correct, then Chaudhry would have accumulated only
163 days of unlawful status by the time of his third filing
on May 25, 2006. Relying heavily on various agency
memoranda addressing the meaning of “unlawful pres-
ence” under a separate provision of the Immigration
and Nationality Act, the IJ agreed with the government
that Chaudhry’s “lawful status” ended on January 21,
2005 (489 days before the final adjustment application).
The IJ entered an order denying Chaudhry’s application
for adjustment of status and granting voluntary de-
parture within 30 days.
Chaudhry appealed to the Board, but on September 26,
2011, it issued a decision dismissing the appeal and
reinstating the IJ’s grant of voluntary departure. The
Board acknowledged that “unlawful presence” and
“unlawful status” are distinct concepts. To that extent,
it implicitly rejected the IJ’s reasoning, which seemed to
conflate the issues. Nevertheless, the Board held that
“[t]he pendency of [Chaudhry’s prior] adjustment
application[s] had no bearing” on Chaudhry’s nonim-
migrant status after it expired on January 21, 2005.
Chaudhry petitions for review of the Board’s order.
No. 11-3350 5
II
The key issue here is straightforward: what is the mean-
ing of “lawful status” for purposes of 8 U.S.C. § 1255(k)?
Chaudhry argues that “lawful status” for adjustment
eligibility purposes extends to a person who has a
prior adjustment-of-status application still pending,
even if that person’s nonimmigrant status has expired
and not been extended; the government contends that
it does not.
This question is important because § 1255 allows
nonimmigrants to adjust their status to that of a person
“lawfully admitted for permanent residence” under
certain conditions. 8 U.S.C. § 1255(a). Ordinarily, a person
“who is in unlawful immigration status on the date of
filing the application for adjustment of status . . . or who
has failed (other than through no fault of his own or
for technical reasons) to maintain continuously a lawful
status since entry into the United States” is ineligible for
adjustment. 8 U.S.C. § 1255(c)(2). However, for certain
lawfully admitted aliens who file an employment-
based application for adjustment of status, there is an
exception to this bar. Such applicants remain eligible
for adjustment, “notwithstanding subsection (c)(2),” if
they have not:
for an aggregate period exceeding 180 days—(A) failed
to maintain, continuously, a lawful status; (B) engaged
in unauthorized employment; or (C) otherwise vio-
lated the terms and conditions of [their] admission.
8 U.S.C. § 1255(k)(2). In other words, applicants like
Chaudhry enjoy a 180-day grace period during which
6 No. 11-3350
they may allow their “lawful status” to lapse without
forfeiting adjustment eligibility.
Chaudhry argues that he maintained “lawful status”
throughout the pendency of his first two applications
for adjustment of status because he was in a “period of
stay authorized by the Attorney General.” Chaudhry
borrows this terminology from 8 U.S.C. § 1182(a)(9)(B)(ii),
which defines “unlawful presence” for purposes of an
alien’s future admissibility. An alien is “unlawfully
present” if she is “present in the United States after
the expiration of the period of stay authorized by the
Attorney General”; the total duration of such unlawful
presence may affect her later efforts to reenter the
United States. 8 U.S.C. §§ 1182(a), (a)(9)(B)(ii). As the
Board explained, however, unlawful presence and un-
lawful status are distinct concepts in the argot of im-
migration specialists. It is entirely possible for aliens to
be lawfully present (i.e., in a “period of stay authorized
by the Attorney General”) even though their lawful
status has expired. See In re L-K, 23 I. & N. Dec. 677, 680-
81 (BIA 2004) (distinguishing status and presence).
Indeed, just that ordinarily happens when a person’s
status becomes unlawful while she has a pending ad-
justment application. See 8 U.S.C. § 1182(a)(9)(B)(iv).
The Immigration and Nationality Act does not
provide a statutory definition for “lawful immigration
status,” see 8 U.S.C. § 1101, but CIS has defined the
phrase in its regulations. See 8 C.F.R. § 245.1. For pur-
poses of 8 U.S.C. § 1255(c)(2), the regulation provides
that the term “lawful immigration status”:
No. 11-3350 7
will only describe the immigration status of an indi-
vidual who is: (i) In lawful permanent resident
status; (ii) An alien admitted to the United States in
nonimmigrant status as defined in section 101(a)(15) of the
Act, whose initial period of admission has not expired
or whose nonimmigrant status has been extended in ac-
cordance with part 214 of this chapter; (iii) In refugee
status under section 207 of the Act, such status not
having been revoked; (iv) In asylee status under
section 208 of the Act, such status not having been
revoked; (v) In parole status which has not expired,
been revoked or terminated; or (vi) Eligible for the
benefits of Public Law 101-238 (the Immigration
Nursing Relief Act of 1989) and files an application
for adjustment of status on or before October 17, 1991.
8 C.F.R. § 245.1(d)(1) (emphasis added). This definition
expressly forecloses the argument that a “period of
stay authorized by the Attorney General” might also
constitute “lawful status” for purposes of § 1255.
This is a reasonable agency interpretation entitled to
our deference. Chevron v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Indeed, were we to
adopt Chaudhry’s reading, a nonimmigrant could indefi-
nitely extend her eligibility for adjustment of status,
despite the expiration of her lawful nonimmigrant
status, simply by filing successive applications. This
would thwart the basic aim of § 1255(k), which creates
a limited grace period for certain nonimmigrants whose
lawful status has lapsed; it would instead perversely
encourage nonimmigrants to file non-meritorious ap-
plications to forestall ineligibility.
8 No. 11-3350
Chaudhry counters that there are equally serious prob-
lems on the other side: a narrower construction of
“lawful status” for § 1255(k) purposes, he argues, will
place some nonimmigrants in a bind. During the
pendency of an application for adjustment of status to
lawful permanent resident, it may be difficult to
extend nonimmigrant status, because the adjustment
application is evidence of the petitioner’s intent to immi-
grate. See 8 U.S.C. § 1184(b) (requiring certain visa ap-
plicants to overcome presumption of immigrant intent
in order to receive nonimmigrant status). That assump-
tion about intent may be worth rethinking, to the
extent that the presumption is not overridden by other
provisions, like the one in 8 U.S.C. § 1184(h), which
says that “the fact that an alien . . . has otherwise sought
permanent residence . . . shall not constitute evidence
of [immigrant intent] for purposes of . . . maintaining [L-1]
status.” Nothing in § 1184(b), however, alters the defini-
tion of “lawful immigration status” set forth in 8 C.F.R.
§ 245.1(d)(1). We note as well that Chaudhry does not
contend that he failed to maintain lawful status “for
technical reasons,” which would be a separate excep-
tion under § 1255(c).
Finally, Chaudhry suggests that § 245.1(d)(1) supplies
only the meaning of “lawful immigration status” for
purposes of § 1255(c), not § 1255(k), which contains the
critical, ambiguous phrase “lawful status.” Though we
are mindful of the dangers of importing terms of art
from one statute to another—the confusion in this very
case between “unlawful presence” and “unlawful sta-
tus” illustrates what can happen—his argument is not
No. 11-3350 9
persuasive. First, the precise words “lawful immigra-
tion status” do not appear even in § 1255(c), which dis-
cusses only “unlawful immigration status,” “lawful
status,” and “lawful nonimmigrant status.” Were we
to accept Chaudhry’s argument, 8 C.F.R. § 245.1(d)(1)
would define nothing at all. The plain inference is that
the regulatory definition applies to all of these inter-
changeable formulations. Second, as explained above,
§ 1255(k) carves out a limited exception to § 1255(c).
Reading these two subsections together, it is most
natural to conclude that the “lawful status” contemplated
in the latter subsection is the same “lawful status” dis-
cussed in the former.
III
We conclude with a comment on a peculiar aspect of
this case that the IJ, the Board, and both parties appear
to have overlooked. At some point during the pendency
of his first two adjustment applications, Chaudhry re-
turned to Pakistan to attend to family business. He re-
turned to the United States on March 12, 2005, shortly
after the expiration of his nonimmigrant status, at
which time he was paroled into the country until
March 13, 2006. While we reject the argument that a
pending adjustment application conferred “lawful status”
on Chaudhry pursuant to 8 C.F.R. § 245.1(d)(1)(ii), it may
be that Chaudhry’s parolee status tolled the accrual of
days without status pursuant to 8 C.F.R. § 245.1(d)(1)(iv).
Chaudhry did not advance this theory before the
Board, however. His failure to exhaust the argu-
10 No. 11-3350
ment—perhaps occasioned by the government’s own
failure to identify the controlling regulation in the pro-
ceedings below—deprives us of the opportunity to pass
on the issue. Sarmiento v. Holder, 680 F.3d 799, 803-04
(7th Cir. 2012) (“A party must exhaust all administra-
tive remedies before seeking review by this court, and
failure to raise a specific issue before the Board typically
forecloses a party from raising it on appeal.”).
Accordingly, the petition for review is D ENIED.
1-17-13