Sofokli Gazeli v. Jefferson B. Sessions, III
856 F.3d 1101
| 6th Cir. | 2017Background
- Sofokli and Mirela Gazeli, Albanian nationals, entered the U.S. on B-2 visas in 2001 and overstayed after Sofokli's visa expired on Jan. 1, 2002.
- Employer filed labor-certification on May 6, 2002 (approved Apr. 15, 2003) and an I-140 on Oct. 24, 2003; Petitioners filed concurrent adjustment-of-status applications the same day and left/returned on advance parole in 2004.
- USCIS approved the I-140 in Feb. 2005 but denied the first adjustment applications as Sofokli had accrued more than 180 days out of "lawful status" before filing, per 8 U.S.C. §1255(k).
- Petitioners filed a second set of adjustment applications after returning from advance parole; USCIS denied those in Sept. 2006. DHS initiated removal proceedings and the IJ denied adjustment and ordered removal.
- The BIA affirmed: (1) a pending labor-certification application does not confer "lawful status" for §1255(k) purposes, and (2) immigration courts lack jurisdiction over adjustment applications filed after return from advance parole unless they are the "previously filed application" the alien returned to pursue (8 C.F.R. §1245.2(a)(1)(ii)).
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a pending DOL labor-certification application confers "lawful status" for §1255(k)’s 180‑day rule | Pending labor-certification tolls unlawful status, so Sofokli accrued only 125 days out of status | Regulation 8 C.F.R. §1245.1(d)(1) (six categories) reasonably defines "lawful status" and excludes pending labor certification | Held: Pending labor-certification does not confer lawful status; regulation is a reasonable interpretation entitled to deference |
| Whether the BIA/ IJ could excuse late filing under §1255(c) as a "technical reason" due to DOL delay | DOL delay should excuse failure to file within 180 days under §1255(c) | Petitioners failed to raise this "technical reasons" claim before the BIA, so court lacks jurisdiction to review | Held: Court lacks jurisdiction to consider the unraised "technical reasons" argument |
| Whether immigration courts have jurisdiction to adjudicate adjustment applications filed after return from advance parole | IJ had jurisdiction because Petitioners departed and returned to pursue a "previously filed" application and should be allowed to pursue adjustment in removal proceedings | 8 C.F.R. §1245.2(a)(1)(ii) limits IJ jurisdiction to the specific "previously filed application" the alien returned to pursue; applications filed after return are for USCIS | Held: IJ lacked jurisdiction over the second set because they were filed after return and were not "the previously filed application" |
| Validity of 8 C.F.R. §1245.2(a)(1)(ii) (allocating jurisdiction between USCIS and immigration courts for arriving parolees) | Regulation conflicts with §1255(a)’s grant to paroled aliens to apply for adjustment and impermissibly denies forum access | Regulation is a lawful exercise of the Attorney General’s authority to allocate adjudicatory responsibility and is consistent with INA framework | Held: Regulation is permissible under Chevron and upheld as not arbitrary, capricious, or manifestly contrary to statute |
Key Cases Cited
- Chevron v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework)
- Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633 (6th Cir.) (employment-based adjustment process overview)
- Chaudhry v. Holder, 705 F.3d 292 (6th Cir.) (upholding definition of lawful status in related regulation)
- Dhuka v. Holder, 716 F.3d 149 (5th Cir.) (same as to regulatory definition of lawful status)
- Scheerer v. United States Attorney General, 513 F.3d 1244 (11th Cir.) (upholding §1245.2(a)(1)(ii) as consistent with INA)