Castro-Soto v. Holder

United States Court of Appeals
For the First Circuit
No. 08-1399
FRANCISCO ANTONIO CASTRO-SOTO,
Petitioner,
v.
ERIC H. HOLDER, JR.*, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, John R. Gibson,** and Howard,
Circuit Judges.
Ramon M. Gonzalez, for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
John S. Hogan, Senior Litigation Counsel and Regan Hildebrand,
Attorney, Office of Immigration Litigation, United States
Department of Justice, for respondent.
February 24, 2010
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
substituted for former Attorney General Michael B. Mukasey as the
respondent herein.
**
Of the Eighth Circuit, sitting by designation.
HOWARD, Circuit Judge. Francisco Antonio Castro-Soto, a
citizen and national of the Dominican Republic, petitions for
review of the denial of his application for adjustment of status.
The Board of Immigration Appeals ("BIA") determined that Castro-
Soto was ineligible for adjustment of status because he entered the
United States illegally and could not be "grandfathered" under
Section 245(i) of the Immigration and Nationality Act ("INA"), 8
U.S.C. § 1255(i). After review, we agree and deny his petition.
I.
In 2005, Castro-Soto entered the United States illegally.
He was subsequently detained and charged with removability. At his
removal proceeding, Castro-Soto sought adjustment of status, "a
process whereby certain aliens physically present in the United
States may obtain permanent resident status . . . . without leaving
the United States." De Acosta v. Holder, 556 F.3d 16, 18 (1st Cir.
2009). In requesting adjustment, Castro-Soto relied in part on an
I-130 visa petition that his spouse had filed on his behalf in
December 2004. Despite a statutory bar against adjustment by those
who have entered the country illegally, Castro-Soto asserted that
the visa petition could support adjustment of his status, because
he was "grandfathered" based on a previous visa petition that had
been filed on his behalf several years earlier.
This was not the first time that Castro-Soto had
attempted to adjust his status based on his marriage to a United
-2-
States citizen. He first entered the United States in 1988.1 At
some point thereafter, he married his first wife, a United States
citizen. In March 1992, she filed an I-130 petition on his behalf,
seeking to qualify him as an immediate relative-spouse. See 8
U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1); 8 C.F.R.
§ 204.2(a).
Based on his then-spouse's immediate relative visa
petition, Castro-Soto filed an I-485 application for adjustment of
status to that of lawful permanent resident. See 8 U.S.C. § 1255;
8 C.F.R. § 245.1(a). The immediate relative visa petition received
final approval in June 1992, and in December 1992 Castro-Soto's
application for adjustment of status was also approved.
The approval of the application for adjustment of status
contained conditions, however. Under the INA, when an alien who
has been married to a United States citizen for less than two years
receives permanent resident status by virtue of that marriage, the
grant of permanent resident status is conditional. 8 U.S.C. §
1186a. The alien and his spouse must submit a second petition
requesting the removal of conditions, at which point the government
may terminate the alien's permanent status if it finds that the
1
The record is clear that Castro-Soto obtained conditional lawful
permanent residence in December 1992. The government says that he
first entered the United States in 1988, citing a transcript of a
hearing that was held below. This date appears accurate, as the I-
130 form filed by Castro-Soto's first wife on his behalf indicates
that he arrived in December of 1988. We thus identify 1988 as his
arrival year, although this fact is immaterial to our analysis.
-3-
marriage is not bona fide. 8 U.S.C. § 1186a(c), (d). If the alien
fails to have the conditions to lawful permanent residence removed,
his permanent resident status is terminated as of the date of that
determination. 8 U.S.C. § 1186a(c)(3)(C).
Castro-Soto and his spouse did later petition for removal
of the conditions, but their petition was denied. An Immigration
Judge ("IJ") subsequently found that the petition to remove
conditions had been denied because the "[g]overnment questioned the
bona fides of the marriage and the intent of the marriage."
Castro-Soto and his first wife divorced in 2001. He then
sought relief from the consequences of the previous denial of the
joint petition for removal of conditions, through an application
for a waiver based on a good faith marriage ending in divorce. In
June 2002, the Department of Homeland Security ("DHS") denied the
waiver application and placed Castro-Soto in removal proceedings.
See 8 U.S.C. § 1227(a)(1)(D)(i) (classifying as "deportable" aliens
whose conditional permanent resident status has been terminated).
During removal proceedings, Castro-Soto again sought a
waiver for a good faith marriage ending in divorce, and
alternatively requested cancellation of removal and voluntary
departure. In September 2003, the IJ, though granting Castro-Soto
voluntary departure, denied his requests for cancellation of
removal and for a waiver. Castro-Soto appealed the IJ's decision
to the BIA, which affirmed the IJ's decision in December 2004.
-4-
Also in 2004, Castro-Soto remarried. In January 2005, he
left the country pursuant to the voluntary departure order, but not
before filing a motion to reopen his case so that he could apply
for adjustment of status based on his second wife's petition to
categorize him as an immediate relative.2 He reentered the United
States illegally eight days later and was subsequently placed in
removal proceedings. Before the IJ, Castro-Soto again sought
unsuccessfully to adjust his status, claiming that he was permitted
to rely on the more recent visa petition because of a
grandfathering mechanism triggered by the 1992 visa petition. The
BIA affirmed the IJ's order pretermitting Castro-Soto's application
for adjustment.
II.
Before us, Castro-Soto continues to argue that he is
entitled to rely on the earlier I-130 petition filed in 1992 to
adjust his status now. Typically, aliens who enter the United
States without inspection or parole are prohibited from applying
for adjustment of status. Echevarria v. Keisler, 505 F.3d 16, 19
(1st Cir. 2007); see also 8 U.S.C. § 1255(a), (c). An exception to
this general rule exists for beneficiaries of visa petitions that
2
The BIA denied this motion to reopen in January 2005. It
concluded that Castro-Soto could not adjust status based on his
second-wife's 2004 visa petition because he failed to produce clear
and convincing evidence that his second marriage was bona fide.
Castro-Soto did not petition for review of this decision, although
he did file a motion to reconsider, which the BIA denied in March
2005. Castro-Soto did not appeal that ruling.
-5-
were filed before April 30, 2001. See 8 C.F.R.
§ 245.10(a)(1)(i)(A), (B); Echevarria, 505 F.3d at 19. Castro-Soto
claims that because he is the beneficiary of his first wife's 1992
visa petition, he qualifies under this grandfathering provision to
file again for adjustment.
An alien may qualify for grandfathering if he is
physically present and the "beneficiary" of a visa petition. §
245.10(a)(1)(i). The visa petition relied upon by the alien must
have been (1) filed before April 30, 2001, (2) "properly filed,"
and (3) "approvable when filed". Id. at (a)(1)(i)(A); (a)(2)(i);
(a)(3).3 If the visa petition has met these three requirements, it
may be used for grandfathering purposes even if it "was later
withdrawn, denied, or revoked due to circumstances that have arisen
after the time of filing". Id. at (a)(3); see also, Echevarria,
505 F.3d at 19. The applicant bears the burden of proving his
eligibility for adjustment of status. 8 C.F.R. § 1240.8(d).
The BIA did not question whether the 1992 visa petition
upon which Castro-Soto is relying for grandfathering purposes
satisfied 245.10's three requirements. Rather, it concluded that
Castro-Soto could not rely on the 1992 petition because the
government had granted it, and Castro-Soto had relied upon the
petition to gain conditional lawful permanent residence. The Board
3
To be "approvable when filed," a visa petition must have been:
"properly filed, meritorious in fact, and non-frivolous." Id. at
(a)(3).
-6-
further stressed that Castro-Soto had not only adjusted his status
using his ex-wife's visa petition, but also "later failed to obtain
removal of the conditions on his permanent residence."
Our review of the BIA's decision is circumscribed. When
Congress has entrusted rulemaking and administrative authority to
an agency, as it has done with the INA, "courts normally accord the
agency particular deference in respect to the interpretation of
regulations promulgated under that authority." S. Shore Hosp. Inc.
v. Thompson, 308 F.3d 91, 97 (1st Cir. Mass. 2002). We defer to
the agency's interpretations of regulations of its own creation
unless the agency's position is "plainly erroneous or inconsistent
with the regulation." Massachusetts v. United States, 522 F.3d
115, 127 (1st Cir. 2008). We conclude that it was not plainly
erroneous or inconsistent with the regulation for the BIA to find
that Castro-Soto had obtained all of the benefit due to him based
on the 1992 petition, and that the petition was therefore
extinguished and cannot now provide grandfathered status.4
4
The government takes the position that, once Castro-Soto initially
obtained the benefit of conditional permanent residence, the
petition was no longer available to be used for grandfathering.
The government's position may be correct, but we are not certain
that the BIA's ruling is quite that broad, and we need not adopt
the broader reading in order to reject the petitioner's argument.
We are not here faced with a situation in which, for example, the
petitioner obtained conditional resident status and then, prior to
the deadline for petitioning to remove the conditions, sought to
rely on the grandfathered petition to adjust status on a different
basis.
-7-
Congress has generally allowed only lawfully present
aliens to adjust their status while in the United States, in order
"to discourage intending immigrants from moving to the United
States before becoming fully eligible for permanent residence and
to encourage them to follow the orderly consular process for the
issuance of immigrant visas." Lee v. U.S. Citizenship &
Immigration Servs., No. 08-1659, 2010 U.S. App. LEXIS 1569, at *4
(4th Cir. Jan. 25, 2010). In 1994, however, Congress temporarily
lifted restrictions on certain illegal aliens who sought adjustment
of status. Id. The grandfather clause, instituted after the
expiration of this 1994 Act, "aimed to protect those who had
legitimate visa applications on file before the more restrictive
amendment came into force excluding applications on behalf of those
who entered illegally." Echevarria, 505 F.3d at 19. We have
observed that it was not these applicants' fault "that it might
take time to process applications that had been filed before the
law changed." Id.It is not an illogical corollary that an applicant's
grandfathered status should expire once he has obtained all of the
benefits available through a visa petition. The DHS reached this
very conclusion in a 2005 policy memorandum in considering the
potential for multiple filings for adjustment of status under
Section 245(i):
-8-
A grandfathered alien is eligible to file an
application to adjust status under section
245(i) as long as the alien meets the
requirements of 8 C.F.R. 245.10 and has not
adjusted status under section 245(i). USCIS
no longer considers an alien "grandfathered"
once the alien is granted adjustment of status
under section 245(i), because the alien has
acquired the only intended benefit of
grandfathering: [Lawful Permanent Resident]
status.
Interoffice Memorandum from William R. Yates, Associate Director
for Operations, U.S. Citizenship and Immigration Services,
Department of Homeland Security, Clarification of Certain
Eligibility Requirements Pertaining to an Application to Adjust
Status under Section 245(i) of the Immigration and Nationality Act,
HQOPRD 70/23.1 at 6 (March 9, 2005). This guidance memorandum is
entitled to our respect to the extent that it is persuasive. See
Christensen v. Harris County, 529 U.S. 576, 587 (2000).5
5
The quoted language is consistent with the regulations themselves,
which provide that certain visa petitions approvable when filed but
later "withdrawn, denied or revoked due to circumstances that have
arisen after the time of filing" can still be used to establish an
alien's grandfathered status. 8 C.F.R. § 1245.10(a)(3). Castro-
Soto's spouse's 1992 petition was approved, and it was never
revoked. Indeed, although the regulations provide for automatic
revocation under certain circumstances -- for example, divorce --
this provision is only triggered when the circumstance occurs
before the government's final decision on the beneficiary's
adjustment application. 8 C.F.R. § 1205.1 (a)(3). Castro-Soto's
adjustment of status was granted in December, 1992. He and his
first wife did not divorce until 2001.
Nowhere do the regulations state that an approved petition, as
opposed to one that is pending, withdrawn, denied or revoked, can
be used to preserve the alien's grandfathered status. The BIA
could reasonably conclude from this silence that this exclusion was
-9-
Castro-Soto argues that his 1992 visa petition was never
extinguished because he never acquired lawful permanent resident
status without conditions. DHS's 2005 memorandum, he observes,
explains that the government "no longer considers an alien
'grandfathered' once the alien is granted adjustment of status
under Section 245(i) because the alien has acquired . . . [Lawful
Permanent Resident] status" (emphasis added). Castro-Soto urges us
to hold that because he only acquired conditional lawful permanent
resident status, his 1992 visa petition is still available for
purposes of grandfathering.
No persuasive authority is cited to support this
interpretation, and in any event there is a significant problem
with it. Were we to adopt Castro-Soto's view, all grandfathered
aliens who, because of their own lack of proof, failed to remove
conditions attached to their lawful permanent resident status could
simply fling infinite subsequent petitions or applications for
adjustment until one happened to stick. Congress could not have
intended such a result. Cf. Echevarria, 505 F.3d at 19–20 ("There
is no reason to think that the grandfathering provision was meant
to give a second bite at the apple to one who earlier had a full
and fair opportunity to prove the marriage was bona fide.").
intentional. See Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 61
(1st Cir. 2001) ("[T]he maxim expressio unius est exclusio alterius
instructs that, 'when parties list specific items in a document,
any item not so listed is typically thought to be
excluded.'")(citation omitted).
-10-
Indeed, this reading would undermine the government's ability to
use conditional resident status as a tool to root out unlawful
immigration based on sham marriages. See Choin v. Mukasey, 537
F.3d 1116, 1120 (9th Cir. 2008) ("Congress . . . created the
conditional permanent resident status to enable the government to
gather two years of evidence about a marriage before granting full
permanent resident status.")
Because Castro-Soto married his first wife less than two
years before she filed her I-130 petition on his behalf, this
petition provided him a basis to obtain only conditional lawful
permanent resident status and, at most, the later opportunity as
well as the obligation to seek the removal of those conditions.
See 8 U.S.C. § 1186a(c), (d). Castro-Soto fully exercised his
right to petition to have his conditions removed. As mentioned, he
and his first wife filed a joint petition to have the conditions on
his lawful permanent resident status removed, but the agency
questioned the bona fides of the marriage and denied that petition.
After he and his first wife divorced, Castro-Soto filed a waiver
application for a good faith marriage ending in divorce which, if
granted, would have removed the conditions on his lawful permanent
resident status. The BIA affirmed the denial of that waiver
application, however, and Castro-Soto never petitioned for review
of that decision.
-11-
III.
We affirm the BIA's determination that the 1992 petition
was extinguished for grandfathering purposes, at the latest, by the
time Castro-Soto's conditional lawful permanent residency expired
and he became removable.
Petition denied.
-12-