Jin Qing Wu v. Holder
2013 U.S. App. LEXIS 54
| 1st Cir. | 2013Background
- Wu, a native and citizen of China, petitions for review of the BIA's dismissal of his adjustment-of-status application.
- Wu entered the United States without inspection on May 5, 1999 and later married a U.S. citizen, triggering potential eligibility for adjustment under a grandfathered provision.
- Wu's employer submitted a labor certification application on his behalf on April 16, 2001; the CDL required corrections and re-submission, with a July 5, 2001 stamped receipt date.
- CIS denied Wu's adjustment in October 2007 because the CDL changed the priority date to July 5, 2001, rendering the filing not on or before April 30, 2001.
- The BIA affirmed, rejecting Wu's nunc pro tunc and due-process arguments; the IJ's reliance on the stamped date was upheld based on the record of deficiencies and regulatory timing.
- Wu appeals; the court ultimately denies the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Filing date issue - was July 5, 2001 stamping proper or clerical error? | Wu argues July 5 stamp reflects error; April 16 date should control. | Wu's filing was not properly filed by April 30, 2001 due to deficiencies and corrected via later date. | BIA's reliance on July 5 stamp supported; no proper filing by April 30, 2001. |
| Due process and opportunity to testify - were these rights violated? | Wu was denied opportunity to supplement record with testimony. | No claim properly raised before BIA; no jurisdiction to review in this respect. | Court lacks jurisdiction to review due-process claims not raised before BIA. |
| Ineffective assistance of counsel - was counsel's effectiveness reviewable? | Wu asserts ineffective assistance of counsel affected proceedings. | Not properly raised; BIA procedures exist to address such claims. | Court lacks jurisdiction to review ineffective-assistance claims not properly asserted before BIA. |
Key Cases Cited
- De Acosta v. Holder, 556 F.3d 16 (1st Cir. 2009) (establishes adjustment eligibility principles for grandfathered labor certifications)
- Hasan v. Holder, 673 F.3d 26 (1st Cir. 2012) (articulates standard for reviewing BIA decisions on adjustment of status)
- Sombah v. Mukasey, 529 F.3d 49 (1st Cir. 2008) (claims not raised before BIA are not reviewable)
- Alsamhouri v. Gonzalez, 484 F.3d 117 (1st Cir. 2007) ( cites BIA procedures for ineffective assistance claims)
- In re Lozada, 19 I. & N. Dec. 637 (BIA 1988) (procedural framework for ineffective assistance claims)