Petition for Review from the Board of Immigration Appeals.
Nos. A 097 596 483; A 097 596 484.
Marshal E. Hyman, Russell Reid Abrutyn, MarshaL E. Hyman
& Assoc., PC., Troy, Michigan, for Petitioners.
A. Morgan, United States Department of Justice, Washington,
D.C., for Respondent.
Before: DAUGHTREY, ROGERS, and COOK, Circuit Judges.
removal from the United States, Sofokli and Mirela Gazeli
asked an immigration judge (IJ) to approve two sets of
applications to adjust their immigration status. The IJ
concluded that the Gazelis were ineligible for adjustment
under their first set of applications and that it lacked
jurisdiction to consider their second. The Board of
Immigration Appeals (BIA) affirmed. In their petition for
review, the Gazelis raise issues of first impression
regarding the interpretation and validity of two immigration
regulations. Because the BIA properly applied federal law,
and because the challenged regulations are reasonable
interpretations of the Immigration and Nationality Act (INA),
we DENY their petition for review.
the Immigration and Nationality Act, an alien can become a
permanent resident by obtaining an employment visa. To do so,
the alien must complete a three-step process." Patel
v. U.S. Citizenship & Immigration Servs., 732 F.3d
633, 634 (6th Cir. 2013) (citations omitted). First, the
alien's potential employer must apply for and receive
labor certification from the Department of Labor (DOL).
Id. (citing 8 U.S.C. § 1154(b)(3)(C); 20 C.F.R.
§ 656.17(a)(1)). Second, that employer must file an
I-140 petition for a work visa with the Citizenship and
Immigration Services (USCIS). Id. (citing 8 U.S.C.
§ 1154(a)(1)(F); 8 C.F.R. § 204.5(a)). Third, if
the USCIS approves the petition, the alien must then apply to
adjust his immigration status. Id. (citing 8 U.S.C.
§ 1255; 8 C.F.R. § 245.2(a)(3)(ii)).
are natives and citizens of Albania. In July 2001, Sofokli
came to the United States under a B-2 visitor visa, with his
wife Mirela following a few months later. Although
Sofokli's visa permitted him to stay in the United States
only until January 1, 2002, Petitioners remained in the
United States without authorization after that date while
Sofokli sought an employment visa.
6, 2002, four months after Sofokli's visa expired, his
employer applied for labor certification for Sofokli, which
the DOL granted on April 15, 2003. His employer then filed an
I-140 petition for a work visa for Sofokli on October 24,
applied to adjust their status from visitor to permanent
resident the same day, with Mirela filing as her husband's
derivative beneficiary. Thereafter, the USCIS granted
Petitioners advance parole, which permits an alien who is
otherwise inadmissible to leave the United States and reenter
at a later date. See Rais v. Holder, 768 F.3d 453,
456 n.2 (6th Cir. 2014) (citing In re Arrabally, 25
I. & N. Dec. 771, 777 (B.I.A. 2012)). Petitioners left
the United States and returned a few months later in April
2004 to await adjudication of their applications.
February 2005, the USCIS approved the work-visa petition
filed by Sofokli's employer. Unfortunately for
Petitioners, the USCIS denied their adjustment applications a
few weeks later, relying on an INA provision that bars aliens
from adjusting their status if they have accrued more than
180 days in the United States without "lawful
status." See 8 U.S.C. § 1255(k)(2).
Following the denial of their applications, Petitioners
departed again and were paroled into the United States in
2005. They filed a second set of adjustment applications upon
their return, which USCIS denied in September 2006.
months later, the Department of Homeland Security served
Petitioners with a notice to appear before an IJ, alleging
that Petitioners remained in the United States without
authorization and were subject to removal. Appearing before
the judge, Petitioners denied removability and renewed both
their first and second adjustment applications.
denied Petitioners' request to adjust their status and
ordered their removal to Albania. The judge found that
Sofokli had accrued more than 180 days out of "lawful
status" at the time of his first application. As the
judge saw it, Sofokli's lawful status expired on January
1, 2002, yet he did not apply to adjust his status until
October 24, 2003. The judge rejected Sofokli's argument
that he remained in lawful status by virtue of his
employer's pending labor-certification request and
work-visa petition. The judge held that she lacked
jurisdiction to consider Sofokli's second set of
applications. The BIA, acting through a single judge, issued
a separate opinion affirming in all respects. Petitioners
timely filed a petition for review.