Ljupco MATOVSKI; Violeta Matovska, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.
No. 05-4534.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 31, 2006. Decided and Filed: June 15, 2007.
486 F.3d 722
GWIN, District Judge.
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation.
[O]ur role on habeas review is not to nitpick gratuitously counsel‘s performance. After all, the constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation.... Rather, we are looking to see “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”
(citations omitted). It is rare to resolve a habeas corpus case where new counsel cannot find some evidence that might have been presented in mitigation either by an expert or by a family member, but that is not the test, as we said in Smith.
Therefore, for the reasons stated, I would find that counsel were not ineffective during the mitigation phase of the trial, and I would affirm the decision of the district court in denying the writ of habeas corpus.
Before: MERRITT and BATCHELDER, Circuit Judges; GWIN, District Judge.*
OPINION
GWIN, District Judge.
I. Overview
With this case, Petitioners Ljupco Matovski and Violeta Matovska, his wife, (together, the “Matovskis“) seek review of a decision of the Board of Immigration Appeals (“Board“) that found them deportable. Petitioners say they qualify for employment-based permanent resident status. The Respondent, United States Attorney General Alberto R. Gonzales, disagrees.
The Matovskis are natives and citizens of Macedonia. On May 23, 1996, the United States admitted the Matovskis as B-2 nonimmigrants visiting for pleasure (“B-2 visitor status“). The B-2 visitor status applies to aliens who have a residence in a foreign country that they have no intention of abandoning and who are temporarily visiting the United States for pleasure.
While in the United States under B-2 visitor status, Petitioner Matovski obtained an offer of employment from Nikolic Industries, Inc. (“Nikolic Industries“). In support of its employment offer, Nikolic Industries initiated a three-step status adjustment process on Matovski‘s behalf, petitioning for him to become a permanent resident of the United States. After the Department of Labor earlier found there were insufficient qualified United States workers to perform the Nikolic work and the INS found Matovski was qualified for the position, the INS denied the petitioners’ Application to Register Permanent Residence or Adjust Status (“I-485“) on April 11, 2002, the final step in the employment-based adjustment of status process. The INS denied the application after finding that the Matovskis procured or sought to procure their B-2 visitor for pleasure visa through willful misrepresentation of a material fact.
Upon denying Petitioners’ adjustment of status applications, the INS issued Notices to Appear (“NTA“), which placed Petitioners in removal proceedings. At the removal proceedings, Petitioners renewed their adjustment of status applications and argued that they were previously authorized to remain in the United States while pursuing their adjustment of status applications. On July 22, 2004, the Immigration Judge denied Petitioners’ applications for relief, finding the Matovskis “present in violation of law” for remaining in the United States past the expiration of their B-2 visitor status and, therefore, “deportable” under Section 1227(a)(1)(B) of
With regard to Petitioners’ applications for discretionary relief, the Immigration Judge found Petitioners inadmissible for failing to establish that immigrant visas were immediately available to them. Specifically, the Immigration Judge found that she lacked jurisdiction to determine the portability of a valid I-140 petition pursuant to
The petitioners appealed the decision of the Immigration Judge to the Board of Immigration Appeals. Separately, they filed a Request for Investigation against their former attorney, Donald Dobkin, with the State of Michigan‘s Attorney Grievance Commission. To some degree, Attorney Dobkin assisted the petitioners in falsely answering a question on their applications to renew their status as B-2 visitors. On those renewal applications, the Matovskis’ claimed that they were not, at the time of the renewal applications, otherwise seeking immigrant status. In actuality, the Matovskis were also seeking employment-based adjustment of status at that time. B-2 visitor status is designed for individuals who do not intend to abandon their foreign residence and who only intend to visit the United States temporarily. Obviously, the Matovskis were pursuing immigrant status at the times they completed these applications to extend their B-2 visitor status.
On November 23, 2005, the Board of Immigration Appeals affirmed the Immigration Judge‘s decision that the petitioners were removable, as well as the Immigration Judge‘s ruling that she lacked jurisdiction over portability determinations pursuant to
With this appeal, the petitioners request review of the following issues: (1) whether the Immigration Judge had jurisdiction to apply the portability provisions of
Initially, this opinion briefly reviews the employment-based adjustment of status process and the two stages of removal proceedings. Second, we examine the factual record and procedural history of the instant case in further detail. We then address the Immigration Judge‘s primary rationale for denying the petitioners’ adjustment of status applications: the belief that she lacked jurisdiction to make portability determinations under
For the following reasons, we AFFIRM IN PART and REVERSE IN PART the Board‘s decision. We REMAND this case to the Immigration Judge for (1) initial determination whether immigrant visas were immediately available when Petitioners originally filed their applications for adjustment of status; and (2) adjudication of Petitioners’ applications for adjustment of status in compliance with
II. Adjustment of Status and Removal Proceedings
A. Employment-Based Adjustment of Status
For an alien to adjust their status to that of a lawful permanent resident based
If the Department of Labor approves the Application for Alien Employment Certification, the employer may then file an I-140, Petition for Alien Worker with the INS. The INS examines evidence filed with the petition to decide whether the alien is eligible for the benefit requested. For example, the INS would determine whether an alien (1) has a labor certification; and (2) meets the minimum requirement of two years of specialized training or experience needed for the alien to qualify as a “skilled worker.”
If the INS approves the I-140, the alien files an I-485, Application to Register Permanent Residence or Adjust Status, the third and final stage of the employment-based adjustment of status process.
B. Removal Proceedings
If the INS denies the I-485, the agency may initiate removal proceedings against the alien by issuing a Notice to Appear. The Notice to Appear must contain “the charges against the alien and the statutory provisions alleged to have been violated.”
In the first stage of a removal proceeding, “the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.”
If the Immigration Judge finds deportability and denies all applications for discretionary relief, petitioners may appeal these decisions to the Board of Immigration Appeals. Thereafter, petitioners may peti-
III. Factual Background and Procedural History
A. Adjustment of Status Process
Petitioners Ljupco Matovski and Violeta Matovska are natives and citizens of Macedonia who were married on February 10, 1995. The petitioners have two children who are citizens of the United States. On May 23, 1996, the United States admitted the petitioners to attend the wedding of a family member as visiting for pleasure B-2 nonimmigrants. Petitioners allege that they initially intended to return to Macedonia after the wedding. However, Mr. Matovski identified a company, Nikolic Industries, who wished to employ him as a machine builder and sponsor him for permanent residency.
The petitioners and Nikolic Industries retained Attorney Donald Dobkin, to help them with the three-step employment-based adjustment of status process. On October 30, 1996, Nikolic Industries filed an ETA-750 on behalf of Mr. Matovski with the Department of Labor, the first step in obtaining an adjustment of status.
Although Nikolic Industries filed this Application for Alien Employment Certification on their behalf, the petitioners continued their presence in the United States under the previously issued B-2 visitor for pleasure visa. By its nature, the B-2 visitor admission is inconsistent with efforts to immigrate. The B-2 visa requires the alien have “a residence in a foreign country which he has no intention of abandoning.”
The petitioners’ initial B-2 visitor for pleasure admission expired on November 22, 1996. On November 5, 1996, the petitioners filed a B-2 Extension Application. The INS granted the extension for an additional six months. Subsequently, the petitioners filed seven additional B-2 Extension Applications that the INS granted. As a result of these extensions, the petitioners maintained their B-2 nonimmigrant visitor for pleasure status until November 20, 2000.
Petitioners allege that during the adjustment of status process, Attorney Dobkin repeatedly told them that immigration law permitted the filing of successive B-2 Visitor Extension Applications. In their final two B-2 Visitor Extension Applications, Petitioners failed to disclose that Nikolic Industries had filed an employment-based adjustment of status petition on Matovski‘s behalf.
On June 26, 1999, nearly three years after Nikolic Industries filed the ETA-750, the Department of Labor approved the Application for Employment Certification, finding that no qualified American workers were available for the position being offered. On August 9, 1999, Nikolic Industries filed an I-140 form on behalf of the petitioner, the second step in obtaining an employment-based adjustment of status to permit residency. The INS approved the I-140 petition. On September 7, 2000, while still maintaining B-2 visitor nonimmigrant status, the petitioners initiated the third and final step of the employment-based application for permanent residency by filing I-485 forms with the INS.
As an accompanying document to the I-485 form, Matovski filed an Application for Employment Authorization (“I-765“), signed on August 23, 2000. Matovski also submitted an August 21, 2000 letter from Nikolic Industries confirming its offer of employment to work as a machine builder for $16.40 per hour. The INS granted the I-765 on November 2, 2000. At that time, Matovski was legally permitted to work for his sponsoring employer. Nevertheless, it is unclear from the record whether Matovski ever actually worked for Nikolic Industries.
B. INS Denial of Adjustment of Status Application
On April 11, 2002, the INS denied the petitioners’ I-485 applications for permanent residency.
Additionally, the INS noted that Nikolic Industries filed an ETA-750 form (initiating the employment-based adjustment of status process) on October 30, 1996. Although the Matovskis were thus seeking immigrant status at that time, the first four B-2 Extension Applications filed subsequently by the petitioners falsely characterized their stay as “temporary.” Likewise, at least one B-2 Extension Application seeking a visa to visit for pleasure expressed the petitioner‘s intention to depart the United States at the conclusion of his stay. As such, the INS highlighted, “You have consistently mischaracterized the facts surrounding your stay within the United States” because “[y]our intention to apply for permanent resident status within the United States is completely inconsistent with your claims that it was your intention to remain in the United States only temporarily.” Finally, the INS advised the petitioner that “any employment authorization and travel authorization issued based on your having a pending application to register permanent residence or adjust status also expire as a result of this decision.”
C. Removal Proceedings
On April 11, 2002, the INS also initiated removal proceedings against the petitioners by filing Notices to Appear. The Notices to Appear stated the petitioners had “remained in the United States beyond November 20, 2000 without authorization from the Immigration and Naturalization Service.” As such, the INS charged the
During initial removal proceedings before an Immigration Judge, the petitioners conceded their removability as charged, but said they should be permitted to remain in the United States while pursuing their efforts to register as permanent residents. They also renewed their adjustment of status applications and applied for the alternative relief of voluntary departure. However, as their applications were denied on April 11, 2002, the petitioners conceded that from that date forward they remained in the country without authorization. The Immigration Judge later noted in her oral decision that the petitioners “neither admitted or denied that they were present in the United States beyond November 28, 2000 without authorization from the Immigration and Naturalization Service.”
On June 29, 2004, the Immigration Judge held a merits hearing. In support of their renewed adjustment of status applications, the petitioners relied upon a provision from the American Competitiveness in the Twenty-First Century Act of 2000:
A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 [8 USCS § 1255] has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
D. Decision of the Immigration Judge
On July 22, 2004, the Immigration Judge first found that the petitioners’ removability had been established by clear and convincing evidence as required by
The Immigration Judge denied the petitioners’ renewed applications for permanent residence, Petitioners’ first application for discretionary relief, for three reasons. First, the Immigration Judge denied Petitioners’ application because the petitioners failed to establish that an immigrant visa was immediately available to them. In reaching this decision, she
Second, the Immigration Judge denied the petitioners’ application for discretionary relief because she found the petitioners inadmissible under
Third, the Immigration Judge denied the petitioners’ application for discretionary relief as a matter of discretion due to the “pattern of immigration fraud perpetrated over a period of four years.”
The Immigration Judge also denied the petitioners’ applications for voluntary departure, Petitioners’ second application for discretionary relief, as a matter of discretion. She then ordered that the petitioners be “removed and deported from the United States to Macedonia on the charges contained within the Notice to Appear.”
E. Petitioners’ Appeal to the Board of Immigration Appeals
On August 5, 2004, the petitioners appealed the decision of the Immigration Judge to the Board of Immigration Appeals, claiming: (1) the Immigration Judge erred in determining that she lacked jurisdiction to address the applicability of portability provisions contained within
On November 23, 2005, the Appeals Board sustained, in part, and dismissed, in part, the petitioners’ appeal. The Board affirmed the Immigration Judge‘s ruling that she lacked jurisdiction to address the applicability of portability provisions contained within
After ruling on these issues, the Board of Immigration Appeals never reached the merits of Petitioners’ claim that the evidence failed to show they knowingly misrepresented a material fact. Similarly, the Board did not address the Immigration Judge‘s discretionary denial of the petitioners’ adjustment of status applications. However, the Board did reverse the Immigration Judge‘s discretionary denial of the petitioners’ applications for voluntary departure.
IV. Legal Standards
We review Board of Immigration Appeals rulings on legal issues concerning the requirements of the immigration statute de novo. See Castellano-Chacon v. INS, 341 F.3d 533, 552-53 (6th Cir.2003). Likewise, we give deference to an agency‘s
V. Analysis
As described in greater detail above, during Petitioners’ removal proceedings the Immigration Judge denied the petitioners’ renewed adjustment of status applications on three grounds. First, the Immigration Judge ruled that she lacked jurisdiction to adjudicate the portability of Petitioner‘s I-140 petition under
With this appeal, Petitioners say that the Board of Immigration Appeals erred in upholding the Immigration Judge‘s denial of their renewed adjustment of status applications. Specifically, the petitioners first argue that the Board erred in determining that an Immigration Judge does not have jurisdiction to adjudicate portability determinations under
A. Jurisdiction to Adjudicate Portability Determinations Under 8 U.S.C. § 1154(j)
Petitioners first allege that the Board erred when it ruled that the Immigration Judge lacked jurisdiction to adjudicate the portability of Petitioner‘s I-140 form under
1. Applicability of 8 C.F.R. § 245.1(g)
The Immigration Judge primarily based her denial of Petitioners’ renewed adjustment of status applications upon her decision that she lacked jurisdiction to adjudicate the portability of Petitioner‘s I-140 petition under
In addition to providing aliens with the right to renew applications for adjustment of status in removal proceedings,
Since the applicability of
2. Jurisdiction to Adjudicate Portability Determinations Under 8 U.S.C. § 1154(j)
Assuming that
Together with family-sponsored immigration and diversity immigration, immigration provisions give special treatment to employment-based immigrants.
Although Congress enacted this legislation six years ago, the DHS and Board of Immigration Appeals have failed to issue implementing regulations governing portability determinations of I-140 petitions under this provision. As a result of the significant delay in establishing formal regulations, aliens such as the petitioners who have renewed employment-based applications for adjustment of status in removal proceedings lack any procedure to demonstrate that their new employment satisfies the portability provisions of
a. Petitioners Complied with Statutory Regulations and Informal Guidance
As an initial matter, we first note that the petitioners have complied with both the statutory regulations and informal guidance that exist regarding the adjudication of applications for adjustment of status during removal proceedings. Applications for discretionary relief during removal proceedings are governed by
Additionally, the petitioners have complied with the government‘s informal guidance regarding
The petitioners also complied with existing informal government guidance by submitting evidence of a new qualifying offer of employment to the DHS after Nikolic Industries withdrew its I-140 petition.3
The BIA stressed in Perez Vargas, “[when] the respondent has asserted that he remains eligible for labor certification through his new employment, it is incumbent upon the DHS to determine whether the respondent‘s visa petition remains valid pursuant to section 204(j) of the Act.” 23 I. & N. Dec. at 833 n. 7. We agree, but note that in this case the DHS has now declined to make such a determination for over three years.4
The petitioners have sought to comply with the guidance promulgated by the government. However, the Board of Immigration Appeals found that the petitioners could not invoke the portability provisions of
b. No Authority Expressly Forbids an Immigration Judge from Adjudicating Portability Determinations
Respondent also states that Immigration Judges are precluded from adjudicating portability determinations because the Attorney General has not delegated such authority. Respondent relies upon
While no regulation specifically gives Immigration Judges the authority to adjudicate portability, no regulation expressly forbids their adjudication of such matters. More generally,
Case law does not support Respondent‘s argument. For example, in Krishnamoorthy v. Ridge, 2003 WL 21204051 (N.D.Ill. May 19, 2003), the court explicitly rejected the government‘s determination that the petitioner‘s I-485 application should be rejected because “the portability under Section 106(c) or the American Competitiveness in the Twenty-First Century Act,’ claimed by Krishnamoorthy, could not, ‘in the absence of regulatory guidance or instructive policy memoranda, be applied in the instant matter.‘” Id. Specifically, in granting a mandamus petition, the Krishnamoorthy court noted that “Courts in this district have already held that ‘a petitioner has a right to adjudication of qqq [an] adjustment of status application[] and that INS has a corresponding duty to adjudicate these applications.‘” Id. at *3 (citing Setharatsomphou v. Reno, 1999 WL 755292, at *4 (N.D.Ill. Sept. 27, 1999)). Indeed, the court in Krishnamoorthy held that “[t]his duty is mandatory not discretionary ...” and that “... to be meaningful, INS must adjudicate applications in accordance with governing statutes, including § 204(j). Therefore, INS has a clear duty to adjudicate Krishnamoorthy‘s application in accordance with § 204(j).” Krishnamoorthy, 2003 WL 21204051, at *3.
c. Scope of Jurisdiction Conferred by 8 C.F.R. § 245.1(c)(8)
Finally, the petitioners cite four cases from our sister circuits to support their argument that Immigration Judges and the Board of Immigration Appeals may not narrowly construe their jurisdiction when Congress intended protection for the class. See Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir.2006); Bona v. Gonzales, 425 F.3d 663, 668-70 (9th Cir.2005); Zheng v. Gonzales, 422 F.3d 98, 119-120 (3d Cir.2005); Succar v. Ashcroft, 394 F.3d 8, 29 (1st Cir.2005). These cases examine the application of
Employing traditional Chevron two-step analysis, two circuits invalidated the regulation under Chevron‘s first step, finding that Congress had spoken to the precise question at issue and the regulation was contrary to Congress’ clearly expressed intent. See Bona, 425 F.3d at 668-70; Succar, 394 F.3d at 29. The Third and Eleventh Circuits invalidated the regulation under Chevron‘s second step, holding that the regulation was not based on a permissible construction of the statute because it was inconsistent with the eligibility standards established in
Petitioners analogize that the Board is similarly excluding from eligibility for permanent residence the class of aliens needing to change sponsoring employers because of administrative delays in processing their applications. Congress understood how to limit the categories of aliens eligible to apply for adjustment of status, and it explicitly excluded several categories of otherwise eligible aliens.
Interestingly, while Respondent claims that Immigration Judges lack jurisdiction over portability determinations because the Attorney General has yet to delegate such authority, the Respondent fails to explain what authority permits Immigration Judges to ignore valid I-140 petitions. The government has issued informal guidance establishing procedures for the DHS to revoke an I-140 petition upon receipt of an inadequate response to a Notice of Intent to Deny. However, no formal or informal regulation authorizes an Immigration Judge to refuse implementation of
For all the reasons discussed above, the Court REVERSES the Board of Immigration Appeals’ ruling affirming that Immigration Judges lack jurisdiction over
B. Due Process Violation
Petitioners also allege that the Board of Immigration Appeals erred when it found that the Immigration Judge had authority to consider whether Petitioners are inadmissible under
1. Stage One: Determination of Removability
The first stage of the Matovskis’ removal proceeding required the Immigration Judge to determine whether their removability had been established by clear and convincing evidence as required by
The petitioners admitted the first four factual allegations contained within the Notice to Appear that detailed their admission and subsequent extension of admission as nonimmigrant visitors for pleasure. The petitioners neither admitted nor denied the fifth factual allegation contained within the Notice to Appear: “You remained in the United States beyond November 20, 2000 without authorization from the Immigration and Naturalization Service.” However, the petitioners failed to present any evidence that any further extensions had been granted. Finally, the petitioners “conceded that they are subject to removal under the provisions of Section 237(a)(1)(B) of the Act in that after admission as non-immigrants under Section 101(a)(15) of the Act they have remained longer than permitted.”
The petitioners correctly note that due process requires that a Notice to Appear contain all grounds for removability.
2. Stage Two: Adjudication of Applications for Discretionary Relief
The due process accorded to the first stage of removal proceedings (determination of removability) differs from that accorded throughout the second stage (adjudication of applications for discretionary relief). Upon a finding of removability, petitioners are permitted to raise applications for discretionary relief, including “(i) adjustment of status,
Throughout the first stage of a removal proceeding, the government bears the burden of proving removability by clear and convincing evidence.
As such, we find that the Board of Immigration Appeals correctly held that “an Immigration Judge may rule on any ground of inadmissibility that arises during the course of the proceedings, including such grounds that are not included in the charging document.” See Matter of Salazar, 17 I. & N. Dec. 167 (BIA 1979) (“If ... a possible ground of excludability develops, it is proper for the ground to be ruled upon by the immigration judge, as long as the applicant is informed of the issues confronting him at some point in the hearing, and he is given a reasonable opportunity to meet them.“). In addition, Petitioners had actual notice that the government intended to oppose admissibility on the ground that Petitioners allegedly misrepresented a material fact. This rationale was the primary ground of inadmissibility adopted by the INS in their initial denial of Petitioners’ I-485 applications. As such, the petitioners cannot claim that they were unfairly disadvantaged by the Immigration Judge‘s admission of this line of argument. See Brown, 360 F.3d at 351 (holding with regard to an uncharged defense to a petitioner‘s application for discretionary relief, “Brown had the burden of proof ... and had to at least have been aware of the possibility that the INS would try to rely on his 1996 conviction to bar him from relief.“).
Finally, Petitioners argue that the DHS had ample opportunity to charge the ground of inadmissibility for willful misrepresentation by merely amending the Notice to Appear at any time during the course of the removal proceeding pursuant to
Therefore, the Court AFFIRMS the Board of Immigration Appeals’ ruling that the Immigration Judge had authority to consider whether the petitioners are inadmissible under
C. Review on the Merits of the Immigration Judge‘s Two Remaining Bases for Denying Petitioners’ Applications
Petitioners contend that the Board‘s failure to consider the merits of Petitioners’ claim that the Immigration
Given that we ruled in favor of the petitioners with regard to
VI. Conclusion
For the foregoing reasons, we AFFIRM IN PART and REVERSE IN PART the decision of the Board of Immigration Appeals. We REMAND this case to the Immigration Judge for initial determination whether immigrant visas were immediately available when Petitioners originally filed their I-485 applications, as well as further adjudication of Petitioners’ applications for adjustment of status in compliance with
ALICE BATCHELDER, Circuit Judge, dissenting.
I write separately because I disagree with the majority‘s analysis of the first issue, and furthermore, find it to be inconsistent with the conclusory decision on the second issue, leaving the two outcomes incongruous. Accordingly, I disagree with both the holding and the disposition of this appeal. Therefore, I must respectfully dissent.
The first issue involves the “portability” of an alien‘s I-140 petition, pursuant to INA § 204(j),
immigration judge does have jurisdiction to decide portability as part of the overall adjustment of status adjudication in the removal proceedings.
I do not believe that this question of whether the immigration judge may decide in the first instance “if the new job is in the same or similar occupational classification as the old job,” is actually a jurisdictional matter. I would instead frame it as a procedural matter, perhaps more akin to exhaustion. Although immigration judges have undoubtedly been granted authority (i.e., jurisdiction) to adjudicate adjustment of status applications raised in removal proceedings, see
The Perez-Vargas court further hypothesized that, if the immigration judge could not make the § 204(j) portability decision in the first instance, then “it would effectively deny the benefits of § 204(j) to those aliens who are in removal proceedings.” Perez-Vargas, 478 F.3d at 195. The court explained:
[If] an alien in removal proceedings cannot invoke the protections of § 204(j) before the IJ but, instead, must seek administrative closure of the removal proceedings and ask DHS to determine the continuing validity of his visa petition pursuant to § 204(j) ... [then], because administrative closure requires the consent of DHS, the alien‘s access to § 204(j) lies within the discretion of the government. If DHS were to refuse the alien‘s request for administrative closure—as it did in this case—the alien would be unable to avail himself of the process which Congress provided in § 204(j).
Id. As further discussed above, however, I do not believe that this single, and very limited, approach is the alien‘s only recourse to the DHS‘s failure to reach a decision on portability. Because I find the reasoning underlying the Perez-Vargas decision unpersuasive, I conclude that it provides no support for a similar outcome in the present case.
I do agree that circumstances such as are present here, in which the parties are before the immigration judge in removal proceedings and the DHS has yet to offer a decision on portability, require that the alien facing removal have some recourse from the DHS‘s failure to act, but I do not agree that the only satisfactory answer is to reassign the DHS‘s decision to the immigration judge. This chooses the final, most extreme solution first. A less extreme solution would be for the immigration judge to compel the DHS to act. Alternatively, a better solution would be for the agency to amend the regulations regarding portability and, for instance, assign a presumption one way or the other for cases in which the DHS has failed to act. It might even be appropriate, as a practical matter, for a court to create such a presumption until such time as the agency enacts a rule. However, I believe it is improper for this court to bypass these possibilities and instead instruct the immigration judge to usurp the prescribed role of the DHS and make the decision in the first instance as if the immigration judge and the DHS are one and the same. It should go without saying that they are not; by design, the immigration judge and the DHS have separate roles. Therefore, based on these separate roles, I would hold that the portability decision must be left with the DHS.
In the present case, the Matovskis never petitioned or urged the DHS to make a portability decision—not even once. In fact, the Matovskis did not even tell the DHS of the job change for almost three years. Mr. Matovski changed jobs on November 27, 2000, but did not inform the DHS that he had done so until September 16, 2003; almost three years later, which was seventeen (17) months after the DHS had initiated removal proceedings (April 11, 2002) and just ten months before the removal hearing (July 22, 2004). At the hearing, the Matovskis never moved the immigration judge to compel the DHS to make this decision. Instead, the Matovskis insisted that even the immigration judge could not make the portability decision, and that portability was automatic. Of course, even if the Matovskis had urged the DHS to make the decision, such a request would likely have been futile, since the DHS had already denied their Application to Register Permanent Residence or Adjust Status (I-485) over two years earlier (April 11, 2002) on entirely different grounds. Therefore, it is likely that by the July 22, 2004, hearing, the DHS viewed the I-140 portability question as moot.
Both the DHS and the immigration judge denied the Matovskis’ applications for adjustment of status based on an undisputed and indisputable finding that the Matovskis had, over the course of several years, procured numerous visas through willful misrepresentation of a material fact. The Board did not reach this issue, but
The majority also takes the unusual approach of remanding this case to the immigration judge to decide the portability issue, with an acknowledged anticipation that the adverse credibility decision “will require review on the merits by the Board upon appeal from the Immigration Judge‘s [subsequent portability] decision.” Thus, despite the fact that the adjustment of status application has been (and remains) denied based on the immigration judge‘s adverse credibility determination, the majority has effectively stayed any review by the Board of the immigration judge‘s adverse credibility decision until the immigration judge has rendered a new decision on the portability issue. The portability issue, just like the adverse credibility issue, is merely an alternative basis for deciding the adjustment of status application. One has no more importance than the other. If, as the majority concludes, there is a need to remand this case—a conclusion with which I disagree—then the proper approach would be to remand it to the Board to rule on the credibility issue. If the Board were to affirm the immigration judge on the credibility issue, the case would be over; if not, then the Board could remand the case to the immigration judge to reconsider the portability issue based on the majority‘s holding herein. This approach would avoid wasted time and effort, and more importantly, it would afford the Board its proper role in this process.
ALICE BATCHELDER
CIRCUIT JUDGE