Dinesh Khanna v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION SEP 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DINESH KHANNA; et al., No. 08-73020
Petitioners, Agency Nos. A095-459-567
A095-459-568
v. A095-459-569
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 31, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Dinesh Khanna, his wife, and his son, citizens of India, petition for review of
the Board of Immigration Appeals’ dismissal of their appeal from an immigration
judge’s order denying their applications for adjustment under Section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(i). Petitioners contend that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
agency erred in ruling that Dinesh Khanna failed to meet his burden of establishing
that the April 2, 2001 application for alien employment certification filed on his
behalf was “‘approvable when filed’ within the meaning of 8 C.F.R. § 1245.10(a).”
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. The BIA’s
determination that the application for alien employment certification filed on
Khanna’s behalf was not meritorious in fact or approvable when filed is consistent
with the agency’s interpretation of the implementing regulations for eligibility to
be “grandfathered” under Section 245(i), Matter of Riero, 24 I. & N. Dec. 267,
268-69 (BIA 2007), and is supported by substantial evidence.
PETITION FOR REVIEW DENIED.
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