Soo Kwak v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SOO HAN KWAK; EUN YOUNG SHIM No. 12-71576
KWAK,
Agency Nos. A094-332-386
Petitioners, A099-772-108
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued June 3, 2015 Submitted August 1, 2016
Seattle, Washington
Before: O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.
Soo Han Kwak and Eun Young Shim Kwak,1 natives and citizens of South
Korea, petition for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) denial of their application for adjustment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Eun Young Shim Kwak’s application is derivative of lead petitioner Soo
Han Kwak’s petition. Therefore her claim succeeds or fails with his petition. Don
v. Gonzales, 476 F.3d 738, 739 n.1 (9th Cir. 2007).
of status pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1154(j) and 1255(a). We have jurisdiction under 8 U.S.C. § 1252.
The BIA adopted and affirmed the IJ’s denial of Kwak’s claim on the basis
that the IJ correctly concluded that Kwak’s approved I-360 visa petition was not
portable under section 1154(j) of the INA. Where, as here, the BIA adopts and
affirms the IJ’s decision, we review both decisions. Ling Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014).
In order to provide “[j]ob flexibility for long delayed applicants for
adjustment of status to permanent residence,” the INA’s portability provision
provides:
A petition under [8 U.S.C. § 1154(a)(1)(F)]2 . . . for an individual
whose application for adjustment of status . . . has been filed and
remained unadjudicated for 180 days or more shall remain valid with
respect to a new job if the individual changes jobs or employers if the
new job is in the same or a similar occupational classification as the
job for which the petition was filed.
8 U.S.C. § 1154(j).
Subsection (a)(1)(F) allows “[a]ny employer desiring and intending to
employ . . . an alien entitled to classification under section 1153(b)(1)(B)
2
The statute refers to subsection (a)(1)(D), but the correct reference is
subsection (a)(1)(F). The mistake “appears to have been caused by an intervening
(and incomplete) renumbering of some subsections.” Herrera v. USCIS, 571 F.3d
881, 886 n.5 (9th Cir. 2009).
2
[outstanding professors and researchers], 1153(b)(1)(C) [multinational executives
and managers], 1153(b)(2) [those with advanced degrees or exceptional ability], or
1153(b)(3) [skilled workers, professionals, and other workers performing work for
which qualified workers are not available in the U.S.] of this title” to “file a
petition with the Attorney General for such classification.” Id. § 1154(a)(1)(F).
Kwak obtained an I-360 visa as a special immigrant religious worker under
section 1101(a)(27)(C)(ii) of the INA. Such visas are authorized under 8 U.S.C.
§ 1153(b)(4), which is not a listed category under 8 U.S.C. § 1154(a)(1)(F). Visas
authorized pursuant to section 1153(b)(4) are thus not portable under the plain and
unambiguous terms of section 1154(j). See Chevron U.S.A. Inc. v. Natural Res.
Def. Council, 467 U.S. 837, 842–43 (1984) (“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
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unambiguously expressed intent of Congress.”). Accordingly, it was not error for
the IJ and BIA to deny the Kwaks’ application for adjustment of status.3
PETITION DENIED.
3
The Kwaks rely on a letter from Edward H. Skerrett of the Immigration and
Naturalization Service dated May 13, 1994 to argue that, as a matter of policy, the
United States Citizenship and Immigration Service (successor to the INS) allows
special immigrant religious workers to transfer their I-360 visas, so long as the
same religious denomination which filed the initial visa petition continues to offer
the applicant a job as a minister. That letter predates 8 U.S.C. § 1154(j), which
was adopted in 2000. See American Competitiveness in the Twenty-First Century
Act of 2000, Pub. L. No. 106-313 § 106, 114 Stat. 1251, 1254 (Oct. 17, 2000).
Thus, the terms of that letter have been superseded by statute.
4