Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gazeli v. Session

United States Court of Appeals, Sixth Circuit

May 18, 2017

Sofokli Gazeli; Mirela Gazeli aka Mirela Goxhaj, Petitioners,
Jefferson B. Session, III, Attorney General, Respondent.

         On Petition for Review from the Board of Immigration Appeals. Nos. A 097 596 483; A 097 596 484.

         ON BRIEF:

          Marshal E. Hyman, Russell Reid Abrutyn, MarshaL E. Hyman & Assoc., PC., Troy, Michigan, for Petitioners.

          Carmel A. Morgan, United States Department of Justice, Washington, D.C., for Respondent.

          Before: DAUGHTREY, ROGERS, and COOK, Circuit Judges.


          COOK, Circuit Judge.

          Facing 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.

         I. Background

         "Under 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)).

         Petitioners 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.

         On May 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, 2003.

         Petitioners applied to adjust their status from visitor to permanent resident the same day, [1]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.

         In 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.

         A few 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.

         The IJ 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.

         II. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.