Jin Qing Wu v. Holder

United States Court of Appeals
For the First Circuit
No. 12-1133
JIN QING WU,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Howard and Thompson,
Circuit Judges.
Brian Shamus O'Donniley and Schiller Law Group PC on brief for
petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, David V. Bernal, Assistant Director, and Jesse M. Bless,
Trial Attorney, Office of Immigration Litigation, Civil Division,
on brief for respondent.
January 2, 2013
HOWARD, Circuit Judge. Jin Qing Wu, a native and citizen
of the People's Republic of China, petitions for review of the
Board of Immigrations Appeals’ (BIA) dismissal of his application
for adjustment of status. The petition is denied.
I. Background
The United States permits an eligible noncitizen who is
not a lawful permanent resident to apply to adjust his status to
that of lawful permanent resident. De Acosta v. Holder, 556 F.3d
16, 18 (1st Cir. 2009). While aliens who enter the country without
inspection are generally not eligible for such adjustment, 8 U.S.C.
§ 1255(a), (c), an alien may be "grandfathered" and thus eligible
if, as relevant here, a labor certification application was filed
on the alien's behalf by the grandfather date of April 30, 2001.
Id.; 8 U.S.C. § 1255(i).
Wu entered the United States without inspection on May 5,
1999. In April 2007, he married Bijao Chen, a United States
citizen. Soon after, he began the process for adjustment of his
immigration status. In May 2007, Ms. Chen filed an immediate
relative petition on her new husband’s behalf, and Wu filed an
application for adjustment of status. Because Wu had entered the
United States without inspection, his marriage could support a
change in status only if, as relevant here, he was already the
beneficiary of an application for labor certification that was
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filed on or before April 30, 2001. See 8 U.S.C. § 1255(i). Thus,
the outcome of this appeal turns on events that occurred in 2001.
On April 16, 2001, Wu's employer in Fort Collins,
Colorado, Lin Bo, submitted an application for labor certification
on Wu's behalf to the Colorado Department of Labor and Employment
("CDL"). The CDL returned the application to Bo on April 24, 2001,
with instructions to make corrections and additions within forty-
five days. The CDL warned that failure to timely respond would
result in recission of the April 16, 2001 priority date, such that
future submissions would be treated as newly filed applications.1
Bo responded to the CDL on May 11, 2001. The CDL again wrote to
Bo on May 30, 2001. Although that letter is not part of the
record, it is referenced in a subsequent letter that Bo sent to the
CDL on June 20, 2001, in which he stated that he was complying with
instructions contained in the CDL's May 30 correspondence. The
application itself is stamped as "received" by the CDL on "July 5,
2001."
II. Prior Proceedings
The Citizenship and Immigration Service ("CIS") rejected
Wu's application for status adjustment in October 2007. The CIS
observed that, although the original priority date for his labor
1
A "priority date" is used by the United States Citizenship
and Immigration Service to establish the order in which an alien
will be able to obtain a visa or to adjust status. De Acosta, 556
F.3d at 17 n.2.
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certification application was April 16, 2001, the CDL changed it to
July 5, 2001. Therefore, the CIS concluded that no application had
been properly filed on or before April 30, 2001.
In November 2007, the Bureau of Immigration and Customs
Enforcement initiated removal proceedings against Wu as an alien
who entered the United States without inspection. See id.§ 1182(a)(6)(A)(i). Although he conceded removability, Wu
indicated that he intended to use the proceeding to obtain
adjustment of his immigration status. See 8 U.S.C. § 1229a(c)(4).
The matter went before an Immigration Judge ("IJ"), who,
after granting several continuances to allow Wu to secure counsel,
and then for counsel to marshal evidence, denied Wu's application.
The IJ, essentially relying on the stamped date of July 5, 2001,
concluded that Wu failed to meet his burden of showing that the
application was filed on or before April 30, 2001.
Wu appealed to the BIA. He asserted that the IJ erred by
relying on the stamped date rather than the original April 16
submission date and therefore in not adjusting his status. Wu also
alleged that the IJ denied him due process by failing to consider
a brief that he submitted. With respect to the filing date, Wu
argued that the July 5, 2001, stamped date was due to an
"unfortunate administrative error" and that the application should
have been stamped April 16, 2001 by the CDL. Alternatively, he
argued that the IJ could have changed the date nunc pro tunc.
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The BIA dismissed the appeal, finding no clear error in
the IJ's determination that the application for labor certification
was not properly filed before April 30, 2001, as the statute
requires. See 8 U.S.C. § 1255(i)(1)(B)(ii). As part of that
finding the BIA concluded that there was no error in relying on the
stamped receipt date; consequently it did not address the nunc pro
tunc dating request. Finally, the BIA rejected Wu's due process
claim because he failed to demonstrate what evidence was
overlooked, or how he was prejudiced. This timely appeal followed.
III. Legal Analysis
Wu makes three arguments on appeal. First, he claims
that the IJ erred by "failing to provide the petitioner with any
opportunity to supplement the record with testimony." Second, he
argues that the IJ incorrectly reasoned that he had no authority to
change the stamped receipt date of Wu's application and failed to
consider whether testimony could have provided evidence to support
such a change. Finally, Wu argues that he was denied effective
assistance of counsel because he was not advised that he could
testify or that he had waived his right to do so.
Initially, we note that neither Wu's ineffective
assistance of counsel claim nor his argument that he was not
permitted to testify were raised before the BIA.2 Thus, we are
2
To the extent he claimed before the BIA that he had been
denied due process in the immigration court proceedings, Wu did so
only with respect to the alleged failure of the IJ to review a
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without jurisdiction to review them. 8 U.S.C. § 1252(d)(1); see
Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008) (noting that
claims not presented to the BIA are not reviewable). Moreover, the
BIA has explicit procedures for asserting an ineffective assistance
of counsel claim, and Wu does not suggest that he has followed
those procedures. See Alsamhouri v. Gonzalez, 484 F.3d 117, 124
n.8 (1st Cir. 2007) (citing In re Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988)).
Turning to the merits of the dispute over the application
for a labor certification,3 we typically review the decision of the
BIA, not that of the IJ, except to the extent that the BIA deferred
to or adopted the IJ's reasoning. Hasan v. Holder, 673 F.3d 26, 33
(1st Cir. 2012). We will affirm the decision on adjustment of
status if the decision is "supported by reasonable substantial and
probative evidence on the record considered as a whole." De Acosta
v. Holder, 556 F.3d 16, 18 (1st Cir. 2009).
Wu had the burden of proving that the application for
labor certification submitted on his behalf "was properly filed .
brief and exhibits filed prior to his hearing. This claim has been
abandoned on appeal. There is no mention either in his notice of
appeal or brief to the BIA of a claim based on the denial of the
right to testify.
3
Wu's appellate brief focuses on his unexhausted claims of
procedural infirmities, over which, as stated above, we have no
jurisdiction. His brief barely mentions why the BIA's substantive
decision with respect to the July 5, 2001 receipt date was wrong.
That issue, therefore, is probably not properly before us either.
In an abundance of caution, however, we give it our full attention.
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. . on or before April 30, 2001, and . . . was approvable when
filed." 8 U.S.C. § 1255(i)(1)(B)(ii); 8 U.S.C. § 1229a(c)(4); De
Acosta, 556 F.3d at 18. While, as the IJ noted, the back-and-forth
between the CDL and Wu's employer rendered the history somewhat
murky, the chain of communication regarding the CDL's multiple
remands of the application to Wu's employer and the date-stamp of
July 5, 2001 are sufficient evidentiary support for the BIA's
conclusion that the application was not "properly filed" and
"approvable" by April 30, 2001. As the BIA observed, under the
regulations in effect at the relevant time, an application was
"deemed validated" as of the date that the CDL stamped it received.
See 20 C.F.R. § 656.30(b)(1) (2001). Similarly, the record
supports the BIA's determination that Wu failed to demonstrate that
the CDL date-stamp was a clerical mistake. Both the initial April
filing and the employer's response to the CDL's notice contained
deficiencies that necessitated correction. As the BIA noted, the
July 5 date-stamp could support the conclusion that the CDL did not
consider the deficiencies identified in its April and May letters
to the employer to have been rectified.
The petition is denied.
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