Bassem Mansour v. Eric H. Holder, Jr.
739 F.3d 412
| 8th Cir. | 2014Background
- Mansour, a Jordanian citizen, entered the U.S. on a student visa and later acquired conditional permanent resident status via an I-130 and I-485 filed through his then-wife.
- The INS terminated Mansour’s conditional status in 1989 for failure to petition to remove conditions while he was out of the U.S.
- A 1992 I-130 filed by Mansour’s mother was denied because he was married, and Mansour and his wife later divorced in 1992.
- In 1999-2000 another I-130 was approved enabling Mansour to return to the U.S. and stay until 2005, though he remained out of status past 2005.
- Mansour filed an I-485 in 2007 seeking adjustment; because he lacked lawful non-immigrant status, he sought relief under § 245(i) with a grandfather provision for petitions filed on or before April 30, 2001.
- USCIS denied grandfathering under all three I-130 petitions and removal proceedings ensued, with the IJ and then the BIA affirming the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mansour is grandfathered under § 245(i) based on his 1986 petition. | Mansour contends he remains grandfathered despite having used the petition to gain LPR status. | USCIS/BIA treat that once an alien obtains LPR status via a petition, the petition cannot grandfather further adjustment under § 245(i). | Not grandfathered; prior use extinguishes grandfathering under the statute and regulation. |
| Whether the implementing regulation 8 C.F.R. § 245.10(a)(3) is ambiguous and controls here. | The regulation unambiguously entitles grandfathering if the petition was properly filed and approvable, even if later withdrawn or denied. | Regulation addresses only petitions later withdrawn/denied/expired; it is ambiguous with respect to previously approved petitions. | Ambiguous; BIA interpretation adopted and sustained under Skidmore deference. |
| What deference applies to the BIA’s interpretation of § 245(i) given Chevron inapplicability. | Chevron deference should apply or be unnecessary due to precedential value. | Chevron may be inappropriate for unpublished BIA determinations; Skidmore deference applies. | Skidmore deference governs; BIA’s interpretation is persuasive and accepted. |
| Whether the Yates memorandum and related guidance affect Mansour’s grandfathering. | Yates memo supports an alien-based, separate-schemes reading favorable to grandfathering. | Yates memo does not override agency interpretation consistent with statute and regulation. | Yates memo persuasive but not controlling; BIA interpretation remains valid. |
| Whether the BIA’s interpretation aligns with Castro-Soto and related precedent. | BIA misreads to construe grandfathering as alien-based rather than petition-based. | BIA’s view is consistent with Castro-Soto and prior guidance on grandfathering. | BIA interpretation persuasive and consistent with Castro-Soto. |
Key Cases Cited
- Afolayan v. INS, 219 F.3d 784 (8th Cir. 2000) (deference to agency interpretations of federal statutes)
- Mead Corp. v. United States, 533 U.S. 218 (supreme court-2001) (classification rulings generally lack force of law; Chevron deference limitations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (persuasive, not binding, deference based on persuasiveness)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretations deserve controlling deference unless plainly erroneous)
- Castro-Soto v. Holder, 596 F.3d 68 (1st Cir. 2010) (persuasive authority on grandfathering under § 245(i))
- Godinez-Arroyo v. Mukasey, 540 F.3d 848 (8th Cir. 2008) (Skidmore deference to agency interpretations in immigration cases)
- Echevarria v. Keisler, 505 F.3d 16 (1st Cir. 2007) (context for grandfathering purpose and purposes of § 245(i))