Castro-Soto v. Holder

Filing 920100224

Opinion

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var WPFootnote1 = 'Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is\
substituted for former Attorney General Michael B. Mukasey as the\
respondent herein.\
'

var WPFootnote2 = 'Of the Eighth Circuit, sitting by designation.\
'

var WPFootnote3 = 'The record is clear that Castro-Soto obtained conditional lawful\
permanent residence in December 1992. The government says that he\
first entered the United States in 1988, citing a transcript of a\
hearing that was held below. This date appears accurate, as the I-130 form filed by Castro-Soto\'s first wife on his behalf indicates\
that he arrived in December of 1988. We thus identify 1988 as his\
arrival year, although this fact is immaterial to our analysis.\
'

var WPFootnote4 = 'The BIA denied this motion to reopen in January 2005. It\
concluded that Castro-Soto could not adjust status based on his\
second-wife\'s 2004 visa petition because he failed to produce clear\
and convincing evidence that his second marriage was bona fide. \
Castro-Soto did not petition for review of this decision, although\
he did file a motion to reconsider, which the BIA denied in March\
2005. Castro-Soto did not appeal that ruling.\
'

var WPFootnote5 = 'To be "approvable when filed," a visa petition must have been: \
"properly filed, meritorious in fact, and non-frivolous." Id. at\
(a)(3). \
'

var WPFootnote6 = 'The government takes the position that, once Castro-Soto initially\
obtained the benefit of conditional permanent residence, the\
petition was no longer available to be used for grandfathering. \
The government\'s position may be correct, but we are not certain\
that the BIA\'s ruling is quite that broad, and we need not adopt\
the broader reading in order to reject the petitioner\'s argument. \
We are not here faced with a situation in which, for example, the\
petitioner obtained conditional resident status and then, prior to\
the deadline for petitioning to remove the conditions, sought to\
rely on the grandfathered petition to adjust status on a different\
basis. \
'

var WPFootnote7 = 'The quoted language is consistent with the regulations themselves,\
which provide that certain visa petitions approvable when filed but\
later "withdrawn, denied or revoked due to circumstances that have\
arisen after the time of filing" can still be used to establish an\
alien\'s grandfathered status. 8 C.F.R. § 1245.10(a)(3). Castro-Soto\'s spouse\'s 1992 petition was approved, and it was never\
revoked. Indeed, although the regulations provide for automatic\
revocation under certain circumstances -- for example, divorce --\
this provision is only triggered when the circumstance occurs\
before the government\'s final decision on the beneficiary\'s\
adjustment application. 8 C.F.R. § 1205.1 (a)(3). Castro-Soto\'s\
adjustment of status was granted in December, 1992. He and his\
first wife did not divorce until 2001.\
              Nowhere do the regulations state that an approved petition, as\
opposed to one that is pending, withdrawn, denied or revoked, can\
be used to preserve the alien\'s grandfathered status. The BIA\
could reasonably conclude from this silence that this exclusion was\
intentional. See Lohnes v. Level 3 Commc\'ns, Inc., 272 F.3d 49, 61\
(1st Cir. 2001) ("[T]he maxim expressio unius est exclusio alterius\
instructs that, \'when parties list specific items in a document,\
any item not so listed is typically thought to be\
excluded.\'")(citation omitted).\
'

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