Asif Dhuka v. Eric Holder, Jr.
2013 U.S. App. LEXIS 9111
| 5th Cir. | 2013Background
- Dhuka family (Asif, Seema, Arib) are Pakistani nationals who entered as nonimmigrants Nov 5, 2000; Asif’s L-1A and family’s L-2 visas expired Aug 2004.
- They filed an I-140 for Asif in 2003; DHS denied the I-140 and adjustment Sept 2, 2005; motion to reopen denied.
- The 2003 adjustment filing meant the August 2004 visa expiration did not prejudice that pending petition.
- In 2006 Seema filed a new adjustment based on her I-140; it was approved Sept 19, 2006 but visa availability later retrogressed.
- DHS issued a notice of intent to deny in Oct 2007; ultimately denied Dec 19, 2007 for failure to maintain continuous lawful status.
- Immigration Judge denied May 2010; BIA dismissed Feb 3, 2012; petition for review timely filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is out-of-status time after August 2004 counted under 1255(c)(2)? | Dhuka argues §1255(k) can excuse periods not in lawful status. | BIA contends lawful status ended Aug 2004 and 1255(c)(2) bars adjustment. | Yes, Dhuka cannot meet continuous lawful status; petition denied. |
| Does Chevron deference apply to the BIA’s non-precedential decision? | Dhuka argues BIA decision should receive Chevron deference. | BIA decision not precedential; limited persuasive value under Skidmore. | Non-precedential BIA decisions do not receive Chevron deference; still persuasive. |
| Is 1255(k) interpretation valid to count 180-day gaps when adjustment pending? | Dhuka relies on Neufeld Memo counting aggregate 180 days. | BIA adopts 1255(k) interpretation tied to pending-status mechanics. | BIA’s interpretation is reasonable and persuasive; supports denial. |
| Should the case be held in abeyance due to visa retrogression? | Masih suggests abeyance possible if retrogression blocks visa. | Retrogression alone does not override ongoing status deficiency. | No abeyance; the out-of-status period violates §1255(c)(2). |
Key Cases Cited
- L-K (Matter of L-K), 23 I. & N. Dec. 677 (BIA 2004) (technical violation concept; relevance to pending applications)
- Mead Corp., 533 U.S. 218 (Sup. Ct. 2001) (agency deference only when interpreting law with force of law)
- Aguirre-Aguirre, 526 U.S. 415 (Sup. Ct. 1999) (BIA decisions with force of law require precedential status)
- Chaudhry v. Holder, 705 F.3d 289 (7th Cir. 2013) (definition of lawful status; limits broad readings)
- Bokhari v. Holder, 622 F.3d 357 (5th Cir. 2010) (pendency of adjustment does not confer lawful status)
- Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008) (abeyance not automatic; visa retrogression not sole basis)
- Matter of Teberen, 15 I. & N. Dec. 689 (BIA 1976) (timely apply for adjustment; status implications)
- Matter of L-K, 23 I. & N. Dec. 680 (BIA 2004) (technical violation concept to pending applications)