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Hsiao v. Hazuda

United States Court of Appeals, Ninth Circuit

September 1, 2017

Chung Hou Hsiao, Plaintiff-Appellant,
v.
Mark J. Hazuda, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services; James McCament, Acting Director, U.S. Citizenship and Immigration Services; Jefferson B. Sessions III, Attorney General of the United States; Elaine Duke, Acting Secretary, Department of Homeland Security, Defendants-Appellees.

          Argued and Submitted May 10, 2017 Pasadena, California

         Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding D.C. No. 8:14-cv-00728-DOC-DFM

          Scott Eric Bratton (argued) and Margaret W. Wong, Margaret Wong & Associates, Cleveland, Ohio, for Plaintiff-Appellant.

          Glenn Matthew Girdharry (argued), Assistant Director; Elianis N. Perez, Senior Litigation Counsel; William C. Peachey, Director; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: Richard R. Clifton and Michelle T. Friedland, Circuit Judges, and Thomas O. Rice, [*] Chief District Judge.

         SUMMARY[**]

         Immigration

         The panel affirmed the district court's decision granting summary judgment in favor of the United States Citizenship and Immigration Service in an action brought by Chung Hou Hsiao challenging the denial of his application to adjust his status to that of a lawful permanent resident.

         The panel addressed adjustment of status under 8 U.S.C. § 1255(i), a grandfathering provision that allows an alien who would otherwise be disqualified from securing adjustment of status due to unauthorized employment or failing to maintain lawful status to nevertheless obtain adjustment of status if the alien is the beneficiary of a visa petition filed on or before April 30, 2001. In order to qualify, the visa petition must have been "approvable when filed, " meaning, in part, that the visa petition was "meritorious in fact."

         Hsiao claimed that he was the beneficiary of such visa petitions - even though the petitions were denied - because they were "approvable when filed." Hsiao's position was that, to determine whether a previously denied visa petition was "meritorious in fact, " USCIS must reevaluate the petition anew, taking account of any additional evidence that an alien may choose to submit.

         The panel held that, in determining whether an alien's prior visa petition was "meritorious in fact, " it is generally permissible to treat a denial of the petition as dispositive if it was made on the merits and the denial was not the result of circumstances that changed after the petition was filed. The panel acknowledged that there may be exceptions to this general rule, but that such exceptions did not apply in Hsiao's case, and there was no allegation that his circumstances changed between when his visa petitions were filed and when they were denied. The panel further held that, although USCIS may have had the option to reconsider the merits of Hsiao's prior petitions in light of new evidence he submitted, it was not required to do so.

          OPINION

          CLIFTON, CIRCUIT JUDGE:

         The Immigration and Nationality Act permits an alien who is already in the United States and meets certain criteria to apply to adjust his immigration status to that of an alien lawfully admitted for permanent residence without having to return to his country of origin and submit an application at the United States consulate in that country. 8 U.S.C. § 1255(a). An alien is disqualified from using this process, however, if he has engaged in unauthorized employment or has failed to continuously maintain lawful immigration status since entering the United States. 8 U.S.C. § 1255(c)(2). Such a disqualification will be forgiven if the alien was the beneficiary of a qualifying visa petition (or labor certification application) that was filed on or before April 30, 2001, and if the alien meets certain other requirements. 8 U.S.C. § 1255(i). In order to qualify, the visa petition must have been "approvable when filed." 8 C.F.R. § 245.10(a)(1)(i)(A).

         What does it mean for a visa petition to have been "approvable when filed"? If the petition was actually approved, then it qualifies, of course, but what if it was denied? Is the denial dispositive, or should an alien be permitted to relitigate the merits of a previously denied petition when he makes a subsequent application to adjust his immigration status?

         In this case, an alien sought to adjust his immigration status to that of a lawful permanent resident, but in order to do so, he needed to prove that at least one of the two visa petitions he filed prior to 2001 was approvable when filed, even though both were ultimately denied. United States Citizenship and Immigration Services ("USCIS") rejected the alien's application to adjust his status because the petitions were denied on their merits and because there was no allegation that the petitions were denied on the basis of circumstances that changed between the time when they were filed and the time when they were adjudicated. The alien challenged the denial of his application to adjust status in district court, where he argued that the mere fact that the prior visa petitions were denied was insufficient to demonstrate that they were not approvable when filed. He contended that USCIS should have reevaluated the merits of the visa petitions in light of new evidence he submitted.

         The district court granted summary judgment to USCIS and held that USCIS was permitted to reevaluate the merits of a previously denied visa petition to determine whether it was approvable when filed but that it was only obligated to do so if the denial was due to circumstances that changed between when the ...


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