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Kar Onn Lee v. Eric H. Holder

December 3, 2012

KAR ONN LEE, PETITIONER,
v.
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



BIA A088 266 340

The opinion of the court was delivered by: Jose A. Cabranes, Circuit Judge:

12-10-ag

Lee v. Holder

Submitted: October 22, 2012

Before: LEVAL, CABRANES, and SACK, Circuit Judges.

Petitioner Kar Onn Lee, a Malaysian citizen who has overstayed his nonimmigrant visa in the United States, seeks an adjustment of immigration status. Generally, applicants such as Lee, who are present in the United States unlawfully, are not eligible for a change of immigration status. See 8 U.S.C. § 1255(c). Lee, however, has invoked the so-called "grandfathering" exception for beneficiaries of labor-certification applications filed by April 30, 2001. See id. § 1255(i)(1)(B)(ii). The Attorney General has interpreted that provision as applying only to beneficiaries actually listed on labor-certification applications as of April 30, 2001--not individuals who were later substituted as .10(j) ("An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien."); id. § 1245.10(j) (same). We hold that § 245.10(j) and § 1245.10(j), in which the Attorney General sets forth this interpretation, are entitled to Chevron deference. Accordingly, the Immigration Judge and Board of Immigration Appeals properly determined that Lee is ineligible for a change of immigration status because he was not listed as a beneficiary on an application for labor certification until after April 30, 2001.

The petition for review is denied.

Petitioner Kar Onn Lee, a Malaysian citizen who has overstayed his nonimmigrant visa in the United States, seeks an adjustment of immigration status. Generally, applicants such as Lee, who are present in the United States unlawfully, are not eligible for a change of immigration status. See 8 U.S.C. § 1255(c).*fn1 Lee, however, has invoked the so-called "grandfathering" exception for beneficiaries of labor-certification applications filed by April 30, 2001. See id. § 1255(i)(1)(B)(ii).*fn2

The Attorney General has interpreted that provision as applying only to beneficiaries actually listed on labor-certification applications as of April 30, 2001--not individuals who were later substituted as beneficiaries. See 8 C.F.R. § 245.10(j) ("An alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien."); id. § 1245.10(j) (same). We hold that § 245.10(j) and § 1245.10(j) are entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ("Chevron"). Accordingly, the Immigration Judge and Board of Immigration Appeals properly determined that Lee is ineligible for a change of immigration status because he was not listed as a beneficiary on an application for labor certification until after April 30, 2001.

BACKGROUND

Kar Onn Lee entered the United States legally as a nonimmigrant visitor in 2000. In March 2007, Lee--assisted by counsel, as he has been throughout these proceedings--filed an application with the United States Citizenship and Immigration Services ("USCIS") for an adjustment of immigration status, seeking permanent resident status. He updated that application after USCIS approved in July 2007 an "Immigrant Petition for Alien Worker" filed by Penang Malaysian Cuisine listing Lee as the beneficiary for a Malaysian chef position. Penang Malaysian Cuisine had originally filed the application for labor certification in January 2001, listing Ji Fa Cao as the beneficiary. In February 2007, the restaurant replaced Cao with Lee as the beneficiary for the chef position. USCIS denied Lee's application for adjustment of status in August 2008, determining that he was ineligible for permanent resident status on the basis of Penang Malaysian Cuisine's labor certification.*fn3 Lee then filed a motion to reopen and reconsider, which the USCIS denied in February 2009.

In July 2009, the USCIS initiated removal proceedings because Lee had overstayed his visitor visa. In proceedings before an Immigration Judge ("IJ"), Lee conceded his removability but renewed his application for an adjustment of status. Lee argued that he was a "grandfathered" alien within the meaning of 8 U.S.C. § 1255(i), see note 2, ante, because he was listed as the current beneficiary of an application for labor certification filed prior to April 30, 2001. Federal law provides that an immigrant who is unlawfully present in the United States may nonetheless qualify for a change of immigration status as a so-called grandfathered alien if he "is the beneficiary . . . of . . . an application for a labor certification . . . that was filed pursuant to the regulations of the Secretary of Labor on or before [April 30, 2001]." 8 U.S.C. § 1255(i)(1)(B)(ii); see also Butt v. Gonzales, 500 F.3d 130, 132-33 (2d Cir. 2007) (describing the general structure of § 1255(i)). The government opposed Lee's adjustment, citing a regulation promulgated by the Attorney General stating that "[a]n alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien." 8 C.F.R. § 245.10(j). In April 2010, the IJ issued an oral decision denying Lee's adjustment application, but granting him the opportunity to voluntarily depart pursuant to 8 U.S.C. § 1229c(a). Joint App'x 24- 30. The IJ concluded that Lee is not "grandfathered" because, under 8 C.F.R. § 245.10(j), he did not become a beneficiary of the relevant application until after April 30, 2001. Id. at 29. The IJ reasoned that Lee was therefore ineligible for a change of status under 8 U.S.C. § 1255(i)(1)(B)(ii).

Id.

Lee appealed to the Board of Immigration Appeals ("BIA"), arguing that Congress intended to include substituted beneficiaries in the class of aliens eligible for an adjustment of status under § 1255(i)(1)(B)(ii). The BIA rejected Lee's arguments, stating that it was "bound by the implementing regulations that correspond to the relevant portions of the statute." Joint App'x 6-7. Lee then filed this petition for review pursuant to 8 U.S.C. § 1252(b). He asserts that the IJ and BIA erred by affording Chevron deference to the Attorney General's interpretation of the grandfathering provision in § 1255(i)(1)(B)(ii). In particular, Lee argues: (1) that the Secretary of Labor--not the Attorney General--is charged with interpreting the grandfathering provision; (2) ...


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