Manuel Valencia v. Loretta E. Lynch , 811 F.3d 1211 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL VALENCIA, No. 13-70414
Petitioner,
Agency No.
v. A088-199-561
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 21, 2015—Pasadena, California
Filed February 2, 2016
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges and Michael A. Ponsor,* Senior District
Judge.
Opinion by Judge Nguyen
*
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
2 VALENCIA V. LYNCH
SUMMARY**
Immigration
The panel denied Manuel Valencia’s petition for review
of the Board of Immigration Appeals’ denial of adjustment of
status under a regulation that precludes an alien substituted
for the previous beneficiary of a labor certification
application after a sunset date from claiming to be a
grandfathered alien.
The panel held that the Attorney General’s regulation,
8 C.F.R. § 1245.10(j), is entitled to deference under Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). The panel held that 8 U.S.C. § 1255(i),
the statute that allows a beneficiary of a labor certification
application filed on or before April 30, 2001, to apply for
adjustment, is ambiguous because it uses only the general
term “beneficiaries,” not the more specific term “substitute
beneficiaries.” The panel further held that it was permissible
for the Attorney General to interpret the statute to preclude
beneficiaries substituted after the sunset date from obtaining
grandfathered status.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VALENCIA V. LYNCH 3
COUNSEL
Larry Liem Doan (argued), Law Office of Larry Liem Doan,
Los Angeles, California, for Petitioner.
Ann M. Welhaf (argued), Trial Attorney; Tony West,
Assistant Attorney General; Stephen J. Flynn, Assistant
Director; Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., for Respondent.
OPINION
NGUYEN, Circuit Judge:
Petitioner Manuel Valencia, a citizen of Mexico, seeks
adjustment of his immigration status under the
“grandfathering” exception for beneficiaries of labor-
certification applications filed before April 30, 2001. See
8 U.S.C. § 1255(i)(1)(B)(ii). The Immigration Judge and
Board of Immigration Appeals denied Valencia’s application
for adjustment of status, citing a regulation promulgated by
the Attorney General that says, “An alien who was substituted
for the previous beneficiary of the application for the labor
certification after April 30, 2001, will not be considered to be
a grandfathered alien.” 8 C.F.R. § 1245.10(j). Valencia, who
undisputedly falls within the scope of that regulation,
challenges its validity. Because the regulation is a reasonable
interpretation of an ambiguous statute and entitled to
deference, the petition is denied.
4 VALENCIA V. LYNCH
BACKGROUND
Valencia entered the United States in June 2006 on a B-2
tourist visa that expired later that year. About five years
earlier, on April 26, 2001, Lawrence Equipment, Inc., a
California corporation, had filed an application for labor
certification, which was approved by the United States
Department of Labor. This application, however, did not
name Valencia as a beneficiary. At some point after April 30,
2001, Lawrence Equipment obtained approval from the
Department of Labor to substitute Valencia as the beneficiary
of its approved labor certification.1
In January 2007, shortly after Valencia’s tourist visa
expired, Lawrence Equipment filed with the United States
Citizenship and Immigration Services (“USCIS”) an
“Immigrant Petition for Alien Worker” naming Valencia as
the beneficiary. USCIS approved this petition in April 2008,
and assigned it a priority date of April 26, 2001,
corresponding to the date that Lawrence Equipment had
originally filed the application for labor certification.
Valencia then filed an application with USCIS to adjust his
status to that of a lawful permanent resident under 8 U.S.C.
§ 1255(i)(1)(B)(ii). That section allows a beneficiary of an
application for a labor certification filed on or before April
30, 2001 to apply for an adjustment of status. 8 U.S.C.
§ 1255(i)(1)(B)(ii).
USCIS found that Valencia did not qualify for relief
under § 1255(i) because he was not a named beneficiary of
Lawrence Equipment’s labor certification as of April 30,
1
The record does not show exactly when this substitution occurred, but
Valencia concedes it occurred after April 30, 2001.
VALENCIA V. LYNCH 5
2001, but was instead later substituted as a beneficiary. The
Department of Homeland Security commenced removal
proceedings.
In proceedings before an Immigration Judge (“IJ”),
Valencia renewed his application for adjustment of status and
reiterated his argument that he was a grandfathered alien
under 8 U.S.C. § 1255(i). The IJ denied Valencia’s
application because of a regulation promulgated by the
Attorney General stating that “[a]n alien who was substituted
for the previous beneficiary of the application for the labor
certification after April 30, 2001, will not be considered to be
a grandfathered alien.” 8 C.F.R. § 1245.10(j). Valencia
appealed to the Board of Immigration Appeals (“BIA”), but,
in January 2013, the BIA affirmed. The BIA found the
regulation controlling and declined to consider its validity.
Valencia was given sixty days to voluntarily depart from the
country.
In the present petition for review, Valencia argues that the
BIA erred because the grandfathering provision of § 1255(i)
unambiguously applies to substitute beneficiaries like him,
and the Attorney General’s regulation to the contrary is an
unreasonable interpretation of the statute.
DISCUSSION
We must decide whether the Attorney General’s
regulation at 8 C.F.R. § 1245.10(j) warrants deference under
the familiar two-step analysis set forth in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). We join the Second and Fourth Circuits in holding
that it does. See Lee v. Holder, 701 F.3d 931, 938 (2d Cir.
2012); Suisa v. Holder, 609 F.3d 314, 320 (4th Cir. 2010).
6 VALENCIA V. LYNCH
1. The Statute is Ambiguous as to Substitute
Beneficiaries
Step one of the Chevron framework requires us to ask
“whether Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842–43. Our analysis begins “with the
text of the statute.” Yokeno v. Sekiguchi, 754 F.3d 649, 653
(9th Cir. 2014). “The plainness or ambiguity of statutory
language is determined by reference to the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997). We do not look at
contested phrases in isolation because “[t]he meaning—or
ambiguity—of certain words or phrases may only become
evident when placed in context.” FDA v. Brown
&Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000).
Turning to the statute at issue here, 8 U.S.C. § 1255(i), we
conclude that Congress did not speak to the question of
whether that section applies to substitute beneficiaries of
labor certifications. That section provides in relevant part:
Notwithstanding the provisions of
subsections (a) and (c) of this section, an alien
physically present in the United States . . .
who is the beneficiary . . . of . . . an
application for a labor certification under
section 1182(a)(5)(A) of this title that was
filed pursuant to the regulations of the
Secretary of Labor on or before [April 30,
2001] . . . may apply to the Attorney General
VALENCIA V. LYNCH 7
for the adjustment of his or her status to that
of an alien lawfully admitted for permanent
residence.”
8 U.S.C. § 1255(i)(1)(B)(ii).
Significantly, the statute uses only the general term
“beneficiaries,” not the more specific term “substitute
beneficiaries.” Valencia argues that the broader term
necessarily encompasses the narrower, but the context of the
grandfathering provision suggests otherwise. Indeed, as the
Second and Fourth Circuits observed, “‘the beneficiary’ . . .
could refer to one of the three classes of aliens: (1) initial
beneficiaries only; (2) initial beneficiaries and substituted
beneficiaries, but only if the substitution occurred on or
before April 30, 2001; or (3) currently named beneficiaries,
whether original or substituted, regardless of when the
substitution occurred.” Lee, 701 F.3d at 936–37 (citing Suisa,
609 F.3d at 319). Moreover, Congress’s inclusion of the
sunset provision limiting relief to beneficiaries of applications
filed by April 30, 2001, indicates that a more restrictive
interpretation might be appropriate. At a minimum,
“[c]ongressional silence regarding which of these three
options is correct suggests ambiguity under step one of the
Chevron analysis.” Id at 937.
2. The Attorney General’s Regulation is a
Reasonable Interpretation of the Statute
Under step two of the Chevron framework, we ask
“whether the agency’s answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843. If the
agency sets forth a reasonable interpretation that is not
8 VALENCIA V. LYNCH
arbitrary, capricious, or manifestly contrary to the statute,
then we must defer to it. Id. at 844.
For the same reasons that we found the statute ambiguous,
we hold that the Attorney General’s regulation is a
permissible interpretation. See 8 C.F.R. § 1245.10(j). The
inclusion of the sunset provision suggests that Congress
intended to impose a temporal constraint on eligibility for
grandfathered status. The ambiguity is in whether Congress
intended the statute to benefit a discrete, time-bound group of
immigrants, or a discrete, time-bound group of employers
with approved labor certifications. The former interpretation
is the one adopted by the Attorney General, and indeed it
makes better sense of the statute. See Lee, 701 F.3d at 937
(“The focus of § 1255(i)(1)(B)(ii) . . . is on immigrants, not
employers.”) Therefore, it was permissible for the Attorney
General to interpret the statute to preclude beneficiaries
substituted after the sunset date from obtaining grandfathered
status.
Valencia nonetheless argues that the regulation is an
impermissible interpretation of the statute because it conflicts
with another regulation at § 1245.10(a)(3), which says in
relevant part:
A visa petition that was properly filed on
or before April 30, 2001, and was approvable
when filed, but was later withdrawn, denied,
or revoked due to circumstances that have
arisen after the time of filing, will preserve the
alien beneficiary’s grandfathered status . . . .
8 C.F.R. § 1245.10(a)(3). We see no conflict between the
two regulations.
VALENCIA V. LYNCH 9
According to Valencia, because § 1245.10(a)(3) lists
several post-filing changes to labor certifications that do not
affect an original beneficiary’s status, it follows that any
unmentioned post-filing changes must necessarily affect the
original beneficiary’s status. Thus, Valencia’s argument
goes, these latter changes such as the substitution of a new
beneficiary would presumably cause the original beneficiary
to lose grandfathered status and the substitute beneficiary to
gain it.
Valencia’s argument is unpersuasive. The Attorney
General could well have promulgated § 1245.10(a)(3) merely
to address the consequences of a withdrawn, denied, or
revoked petition. That choice doesn’t necessarily imply that
there are other post-filing changes to applications that
adversely affect the original beneficiaries’ grandfathered
status, let alone that such changes include the substitution of
a new beneficiary. In fact, by protecting immigrants from
losing their grandfathered status, this regulation may actually
support the Attorney General’s interpretation of § 1255(i) as
focusing on a discrete group of immigrants rather than a
discrete group of labor certification applications.
CONCLUSION
We hold that 8 C.F.R. § 1245.10(j) is entitled to
deference. Accordingly, the BIA properly denied Valencia’s
application for an adjustment of status.
The petition for review is DENIED.