Randhawa v. Holder , 433 F. App'x 573 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SATNAM SINGH RANDHAWA, No. 07-71830
Petitioner, Agency No. A072-171-361
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 15, 2011
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Satnam Singh Randhawa, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’s (BIA) dismissal of his appeal of an
Immigration Judge’s (IJ) denial of his application for adjustment of status. The IJ
found Randhawa statutorily ineligible under 8 U.S.C. § 1255(d) because he had
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
previously been admitted under a K-1 visa but had failed to marry his sponsoring
American fiancée. The BIA affirmed, finding that 8 C.F.R. § 1245.2(a)(1)(ii)
clarified the procedures for arriving aliens in removal proceedings and nullified
Randhawa’s argument that Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), would
allow for his adjustment of status.
Randhawa’s argument, that he was an “arriving alien” when he returned to
the United States in 2000 under advance parole, does not address the problem that
the application for adjustment was never allowable under subsection 1255(d).
Randhawa’s citations to case law are inapposite because they do not address this
specific bar established by Congress in the Immigration Marriage Fraud
Amendments of 1986. Kalal v. Gonzales, 402 F.3d 948 (9th Cir. 2005), thus
controls. Kalal specifically rejected a petitioner’s attempt to avoid the subsection
1255(d) bar to admission because her formal status was, like Randhawa’s,
erroneously changed in the interim. Id. at 952.
Randhawa’s alternative argument, that he should be treated as an alien who
was inspected and admitted into the United States in 2000, fails because he had
been granted advance parole at the time. Because of this, he was deemed to have
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not yet been “admitted” into the United States, and his situation is still analogous
to the petitioner’s in Kalal. We applied subsection 1255(d) in that case to foreclose
the petitioner from adjusting her status under subsection 1244(i). Id. It applies to
Randhawa’s case, as well. Randhawa’s is an unusual and close case, but even
unpublished decisions of the BIA are entitled to a degree of deference under
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See United States v. Mead
Corp., 533 U.S. 218, 227–28 (2001); Edu v. Holder, 624 F.3d 1137, 1143 (9th Cir.
2010). We give Skidmore deference to the BIA’s decision in this case, applying
the statute and regulations to a factual context in which they are ambiguous.
Finally, Randhawa waived his argument that the BIA erred in concluding he
had not adequately brought the issue of voluntary departure to the attention of the
IJ. His entire argument on voluntary departure consists of only two conclusory
sentences without any reasoning or citation to authority. See Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2001). “A bare assertion of
an issue does not preserve a claim.” D.A.R.E. Am. v. Rolling Stone Magazine,
270 F.3d 793, 793 (9th Cir. 2001). The claim for voluntary departure is
consequently waived.
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The petition for review is therefore DENIED.
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