Perez-Vargas v. Gonzales

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MINOR HUMBERTO PEREZ-VARGAS, 
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.  No. 05-2313
AMERICAN IMMIGRATION LAW
FOUNDATION,
Amicus Supporting Petitioner.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A29-760-997)
Argued: November 28, 2006
Decided: February 22, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Petition for review granted; vacated by published opinion. Judge
Shedd wrote the opinion, in which Judge King and Judge Duncan
joined.
COUNSEL
ARGUED: David J. Rothwell, O’TOOLE, ROTHWELL, NASSAU
& STEINBACH, Washington, D.C., for Petitioner. Carol Federighi,
2 PEREZ-VARGAS v. GONZALES
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immi-
gration Litigation, Washington, D.C., for Respondent. ON BRIEF:
Jeffrey B. O’Toole, O’TOOLE, ROTHWELL, NASSAU & STEIN-
BACH, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant
Attorney General, M. Jocelyn Lopez Wright, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immi-
gration Litigation, Washington, D.C., for Respondent. Trina Real-
muto, Mary Kenney, Washington, D.C., for Amicus Supporting
Petitioner.
OPINION
SHEDD, Circuit Judge:
Minor Humberto Perez-Vargas petitions for review of an order of
the Board of Immigration Appeals ("BIA") holding that an immigra-
tion judge ("IJ") lacks jurisdiction to determine whether an approved
visa petition remains valid, pursuant to § 204(j) of the Immigration
and Nationality Act ("INA"), when the holder of the visa petition has
changed employment. Because we find that this determination lies
within the jurisdiction of an IJ, we grant the petition for review and
vacate the BIA’s decision to the contrary.
I
Congress has provided that certain aliens who are present in the
United States and employed by American employers may apply to
adjust their status to that of lawful permanent residents. 8 U.S.C.
§ 1255. However, before an alien’s status may be adjusted, (1) the
alien must apply for adjustment, (2) he must be eligible to receive an
immigrant visa and be otherwise admissible, and (3) a visa must be
immediately available at the time the application is filed. 8 U.S.C.
§ 1255(a)(1)-(3). To satisfy subsections (2) and (3), the alien must
take several steps.1 First, the alien must obtain a certificate from the
1
While an alien is eligible for adjustment of status based on consider-
ations other than employment, we focus exclusively on the adjustment
process in the context of employment because that is the sole ground rel-
evant here.
PEREZ-VARGAS v. GONZALES 3
Department of Labor indicating that qualified American workers have
been recruited for his job but none is available and that employment
of an alien worker will not adversely affect wages and working condi-
tions of similarly employed American workers. 8 U.S.C.
§ 1182(a)(5)(A)(i). Second, the alien’s employer must file a visa peti-
tion with the Department of Homeland Security ("DHS"), which DHS
must approve. 8 U.S.C. § 1154(a)(1)(F). Third, the alien must wait
until the Department of State determines that his visa is immediately
available based on the priority of the date on which the labor certifica-
tion application was filed. 8 C.F.R. § 1245.1(g). Only then is an alien
eligible for adjustment of status based on employment.
However, even when an alien is eligible for adjustment of status,
he can lose his eligibility under certain circumstances. As relevant
here, this can occur when the alien is no longer employed by the
employer who submitted the approved visa petition or when he is no
longer employed in the job for which the visa petition was approved.
8 C.F.R. § 205.1(a)(3)(iii). In such circumstances, the alien must
begin again the process for adjustment of status.
Due to the length of the application process and in order to allow
job flexibility, Congress enacted INA § 204(j), 8 U.S.C. § 1154(j), in
2000. This section provides:
A petition under subsection (a)(1)(D)[2] of this section for
an individual whose application for adjustment of status pur-
suant to section 1255 of this title 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 occu-
pational classification as the job for which the petition was
filed.
2
The cross-reference to subsection (a)(1)(D) appears to be in error.
Subsection (a)(1)(F) seems to be the intended subsection, given Con-
gress’ redesignation of subsection (a)(1)(D) as subsection (1)(1)(F) by
Section 1503(d)(1) of the Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, 1521.
4 PEREZ-VARGAS v. GONZALES
Section 204(j), therefore, provides relief to the alien who changes jobs
after his visa petition has been approved. More specifically, this sec-
tion permits an application for adjustment of status to remain pending
when (1) it has remained unadjudicated for at least 180 days, and (2)
the alien’s new job is in the same or similar occupational classifica-
tion as the job for which the visa petition was approved. As a result,
an alien who is covered by § 204(j) is not forced to recommence the
lengthy adjustment of status process.
II
Perez-Vargas, a citizen of Guatemala, arrived in the United States
as a nonimmigrant visitor in January, 1991, with authorization to
remain in the country until April 8, 1991. After overstaying his visa,
he filed an application for asylum with the Immigration and Natural-
ization Service ("INS") on May 23, 1991. At subsequent hearings
before an IJ, Perez-Vargas admitted that he was removable from the
country, abandoned his application for asylum, and requested a con-
tinuance so that he could substitute an application for adjustment of
status. Perez-Vargas contended that he was entitled to adjustment of
status based on a visa petition — filed by his employer and awaiting
imminent approval — which would authorize him to remain in the
country as an immigrant worker. The IJ granted the continuance, and
the visa petition was approved on May 28, 2001. Perez-Vargas then
filed his application for adjustment of status and appeared before the
IJ again on July 12, 2002. By this time, Perez-Vargas had been fired
from his prior job (the job for which the visa petition had been
approved) and had secured new employment. Perez-Vargas claimed,
however, that his visa petition remained valid pursuant to § 204(j)
because his new job was substantially similar to the job for which the
visa petition had been granted.
On July 17, 2002, after hearing argument, the IJ held that he lacked
jurisdiction to determine the continuing validity of a visa petition pur-
suant to § 204(j). The IJ therefore denied Perez-Vargas’ application,
found him removable, and ordered voluntary departure with an alter-
nate order of removal. DHS appealed the order of voluntary departure
to the BIA, and Perez-Vargas cross-appealed the denial of his applica-
tion. The BIA vacated the order of voluntary departure but denied
Perez-Vargas’ appeal, finding that an IJ lacks jurisdiction to make a
PEREZ-VARGAS v. GONZALES 5
§ 204(j) determination. After Perez-Vargas moved for reconsidera-
tion, pointing out that the BIA’s decision conflicted with a prior
unpublished opinion, the BIA reaffirmed in a published opinion its
holding that an IJ lacks jurisdiction under § 204(j).3 This petition for
review followed.4
III
We review de novo the legal conclusions of the BIA, including
issues of statutory construction. Nwolise v. INS, 4 F.3d 306, 309 (4th
Cir. 1993). In doing this, we must first ascertain "whether Congress
has directly spoken to the precise question at issue." De Osorio v.
INS, 10 F.3d 1034, 1037 (4th Cir. 1993). If so, our inquiry ends and
we, as well as the BIA, "must give effect to that unambiguously
expressed intent." Id. at 1038. However, if the statutes are silent as to
the specific issue to be resolved, we must determine whether the
BIA’s interpretation is based on a permissible construction of the stat-
ute. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). We likewise
give substantial deference to an agency’s interpretation of its own reg-
ulations. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994).
3
Although not dispositive in our consideration of this petition, we note
that courts typically look askance at an agency’s unexplained deviation
from a prior decision, even when the prior decision is unpublished. See,
e.g., Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d 1408, 1418-19 (4th
Cir. 1985); Davila-Bardales v. INS, 27 F.3d 1, 6 (1st Cir. 1994). Indeed,
when an agency fails to present a reasoned basis for departing from a
previous decision, "it may be deemed to have acted arbitrarily." Balti-
more Gas, 760 F.2d at 1419. Here, the BIA merely explained that its
prior decision "is not . . . precedent[.]" J.A. 831.
4
The Government asserts that we lack jurisdiction over this petition for
review because the BIA remanded this matter to the IJ rather than enter-
ing a final order of removal. We reject this assertion. The BIA’s opinion,
read as a whole, indicates that the remand to the IJ was for the purpose
of determining whether Perez-Vargas is entitled to voluntary departure.
In such circumstances, there is a final order of removal for purposes of
appeal and we have jurisdiction over the petition for review. Saldarriaga
v. Gonzales, 402 F.3d 461, 466 n.2. (4th Cir. 2005).
6 PEREZ-VARGAS v. GONZALES
Perez-Vargas contends that the BIA’s conclusion that an IJ lacks
jurisdiction to make § 204(j) determinations conflicts with the clear
language of the statute. In making this argument, Perez-Vargas asserts
that the BIA misapprehended the question before it by distinguishing
between jurisdiction to adjudicate an application for adjustment of
status and jurisdiction to make a § 204(j) determination. We agree.
Section 204(j) is not a jurisdictional statute, and it does not provide
for an independent administrative process. Rather, it applies to an "in-
dividual whose application for adjustment of status . . . has been filed
and remained unadjudicated for 180 days or more[.]" The relevant
adjudication, then, is of entitlement to adjustment of status, and juris-
diction is founded not on § 204(j) but on 8 U.S.C. § 1255(a)(2)-(3),
which provides that the Attorney General may adjust the status of an
otherwise admissible alien who "is eligible to receive an immigrant
visa" and for whom "an immigrant visa is immediately available."
The Attorney General has, subject to several non-relevant exceptions,
vested IJs with exclusive jurisdiction over applications for adjustment
of status:
In the case of any alien who has been placed in deportation
proceedings or in removal proceedings (other than as an
arriving alien), the immigration judge hearing the proceed-
ing has exclusive jurisdiction to adjudicate any application
for adjustment of status the alien may file.
8 C.F.R. § 1245.2(a)(1) (emphasis added).
Because an IJ has "exclusive jurisdiction" to adjudicate an applica-
tion for adjustment of status, he necessarily has jurisdiction to make
a § 204(j) determination, which is simply an act of factfinding inci-
dental to the adjustment of status process. Cf. 8 C.F.R.
§ 1240.1(a)(1)(iv) (providing that an IJ has authority "[t]o take any
other action consistent with applicable law and regulations as may be
appropriate"); In re H-N, 22 I&N Dec. 1039 (BIA 1999) (holding that
an IJ’s jurisdiction to determine admissibility necessarily implies that
he has jurisdiction over various forms of relief). Indeed, absent the
authority conferred by § 204(j), it would be difficult if not impossible
for an IJ to carry out his statutory duty of determining whether an
alien "is eligible to receive an immigrant visa" when the continuing
PEREZ-VARGAS v. GONZALES 7
validity of an approved visa petition is at stake due to a change in
employment. Accordingly, it is clear that the factfinding mandated by
§ 204(j) is a necessary part of the process by which IJs adjudicate
applications for adjustment of status.
Section 204(j) confirms this conclusion. Section 204(j) broadly
applies to an "individual whose application for adjustment of status
. . . has been filed and remained unadjudicated for 180 days or more"
and who has an approved visa petition. By its terms, § 204(j) does not
distinguish between those aliens whose adjustment applications are
pending before DHS and those aliens whose adjustment applications
are required to be filed with an IJ. Yet the BIA’s interpretation would
make exactly this distinction; moreover, it would effectively deny the
benefits of § 204(j) to those aliens who are in removal proceedings.
This is so because, under the BIA’s interpretation, an alien in removal
proceedings cannot invoke the protections of § 204(j) before the IJ
but, instead, must seek administrative closure of the removal proceed-
ings and ask DHS to determine the continuing validity of his visa
petition pursuant to § 204(j). However, because administrative closure
requires the consent of DHS, the alien’s access to § 204(j) lies within
the discretion of the government. If DHS were to refuse the alien’s
request for administrative closure — as it did in this case — the alien
would be unable to avail himself of the process which Congress pro-
vided in § 204(j). This result is contrary to the plain language of the
statute, which applies to all aliens who have an application for adjust-
ment of status pending and who otherwise satisfy the statute’s terms.
IV
In sum, we conclude that the statutory jurisdiction over applica-
tions for adjustment of status which is unambiguously vested in IJs
necessarily encompasses jurisdiction to make the factual findings pro-
vided for in § 204(j). In addition, § 204(j) itself provides benefits to
a broad class of aliens, including those aliens in removal proceedings.
Because the BIA’s decision is in conflict with these statutes, we grant
the petition for review, vacate the order of the BIA, and remand for
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED