and Submitted May 10, 2017 Pasadena, California
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
Eric Bratton (argued) and Margaret W. Wong, Margaret Wong
& Associates, Cleveland, Ohio, for Plaintiff-Appellant.
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.
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.
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
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.
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.
CLIFTON, CIRCUIT JUDGE:
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).
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
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.
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 ...