Syed Bokhari v. Eric Holder, Jr.

Filing

REVISED PUBLISHED OPINION FILED. [6637924-2] [09-60538]

Syed Bokhari v. Eric Holder, Jr.

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Case: 09-60538

Document: 00511251276

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Date Filed: 10/01/2010

REVISED OCTOBER 1, 2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 09-60538 September 29, 2010 Lyle W. Cayce Clerk P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

S Y E D TALHA BOKHARI,

P e t it io n for Review of an Order of t h e Board of Immigration Appeals

B e fo r e JOLLY, DeMOSS, and DENNIS, Circuit Judges. E . GRADY JOLLY, Circuit Judge: O n December 29, 2006, the Department of Homeland Security ("DHS") c o m m e n c e d removal proceedings against Syed Talha Bokhari, a native and c it iz e n of Pakistan who entered the United States as a nonimmigrant visitor. Bokhari conceded his removability, but sought adjustment of his status from a n o n im m ig r a n t worker to a permanent resident. The Immigration Judge ("IJ") d e t e r m in e d that Bokhari was ineligible for adjustment of status, because he had fa ile d to maintain lawful status in this country for more than 180 days. Bokhari a p p e a le d to the Board of Immigration Appeals ("BIA"), and the BIA affirmed the I J . Bokhari now petitions this court for a review of the BIA's decision. Bokhari

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No. 09-60538 a r g u e s that, because he was authorized to work in the United States, it n e c e s s a r ily follows that he was authorized to be in the United States, and he t h u s was not in unlawful status for more than 180 days. He therefore contends t h a t he is eligible for an adjustment of status, and that the BIA and IJ erred by n o t reaching the merits of his application to adjust to permanent resident status. We disagree. Finding no error, we DENY Bokhari's petition for review of the B I A 's decision. I. Bokhari entered the United States on April 9, 2001, as a B-2 n o n im m ig r a n t visitor. His B-2 status was twice extended, rendering his

p r e s e n c e lawful in the United States until October 9, 2002. His status changed o n June 11, 2002, to a L-1A nonimmigrant worker for Syed T. Enterprises Inc. (" S y e d "). Syed is a subsidiary of Mir Motors, the Pakistan-based company owned b y Bokhari. Bokhari's counsel stated that, at the time of oral argument, Bokhari w a s Syed's sole shareholder, and sole employee. On June 9, 2003, one day before Bokhari's approved L-1A status expired, S y e d , on behalf of Bokhari, filed form I-129, seeking an extension of Bokhari's L -1 A status. The I-129 application was denied on March 19, 2004. On April 19, S y e d appealed, but the appeal was denied on September 2, 2005. In the meantime, on June 8, 2004, Syed had filed an I-140 form, seeking p erm a n e n t residence for Bokhari. Simultaneously, Bokhari, acting individually, file d an I-485 application for adjustment to permanent resident status. The I1 4 0 application for permanent resident status was approved more than a year la t e r , on July 11, 2005. Bokhari's I-485 application, however, was later denied o n September 20, because he had failed, for more than 180 days before filing the a p p lic a t io n , to maintain lawful immigration status. DHS commenced removal p r o c e e d in g s against Bokhari on December 29, 2006.

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No. 09-60538 II. I n the proceedings below, Bokhari conceded removability, but claimed in s t e a d that he was eligible to have his I-485 application renewed. On August 1 7 , 2007, the IJ issued her decision, finding that Bokhari's lawful immigration s t a t u s ended on June 10, 2003, when his one-year term of approved L-1A status e n d e d . She also found that Bokhari had not filed his application for adjustment o f status until June 8, 2004, nearly one year after his lawful immigration status e x p ir e d . Accordingly, the IJ pretermitted addressing his application for a d ju s tm e n t for status. Bokhari appealed the IJ's decision to the BIA. The BIA upheld the IJ's decision on June 17, 2009. Bokhari argued that t h e employment authorization accompanying Syed's I-129 application granted h im lawful immigration status. The government, while conceding that Bokhari h a d proper authorization to work, argued that work authorization does not itself a ls o provide or determine lawful immigration status. The BIA agreed with the g o v e r n m e n t 's position. The BIA further concluded that lawful status derives fr o m a grant or extension of status, and not from a pending application. Bokhari file d this petition for review. III. B o k h a r i contends the BIA erred in upholding the IJ's decision to pretermit d e c id in g Bokhari's application for adjustment of status.1 He argues that the BIA e r r e d in its interpretation and application of the relevant regulations and s t a t u t e s . We have jurisdiction over these claims, as they present "constitutional c la im s or questions of law." 8 U.S.C. § 1252(a)(2)(D); see Mai v. Gonzales, 473 F .3 d 162, 164 (5th Cir. 2006). When considering a petition for review, we review

We do not have jurisdiction to review DHS's discretionary decision to deny Bokhari's I-485 application to adjust status. See 8 U.S.C. § 1252(a)(2)(B)(i).

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No. 09-60538 t h e BIA's legal conclusions de novo. Singh v. Gonzales, 436 F.3d 484, 487 (5th C ir . 2006) (footnotes and citations omitted).2 G iv e n the narrow nature of the question presented, it is worthwhile to e m p h a s iz e several issues on which the parties agree: Bokhari is removable; was o r ig in a lly granted lawful admission to the country as a nonimmigrant visitor, a n d remained lawfully present as a nonimmigrant worker until June 10, 2003; a n d was authorized to work for Syed after June 10, for up to 240 days, during t h e pendency of Syed's I-129 application. The sole issue before us, therefore, is w h e t h e r Bokhari was in unlawful immigration status for more than 180 days, a n d is thus ineligible to have his status adjusted. In making this determination, t h e key question is whether Syed's I-129 application for an extension of B o k h a r i's status gave him lawful immigration status. Bokhari, relying heavily on El Badrawi v. DHS, argues that the automatic e m p lo y m e n t authorization that, under 8 C.F.R. § 274a.12(b)(20), accompanied h is employer's, i.e., Syed's, I-129 application seeking an extension of his n o n im m ig r a n t status, logically gave him lawful immigration status. See 579 F. S u p p . 2d 249, 276-77 (D. Conn. 2008) (holding that employment authorization u n d e r 8 C.F.R. § 274a.12(b)(20) results in lawful status). He thus contends that h is status was lawful until March 19, 2004, when DHS denied the I-129 e x t e n s io n request. Thus, he contends, when he sought adjustment of his status o n June 4, 2004, he had not been in unlawful status for more than 180 days, q u a lify in g him as eligible for the status adjustment under 8 U.S.C. § 1 2 5 5 (k )(2 )(a ).

The parties dispute whether the BIA's interpretation was reasonable, and thus entitled to Chevron deference. We do not decide this issue, as the statute is unambiguous, and Chevron applies only when a statute is ambiguous. See Singh, 436 F.3d at 487. Similarly, we do not determine whether Bokhari is entitled to lenity, since lenity is applied only when there are "lingering ambiguities" to be resolved. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

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No. 09-60538 D H S argues that Bokhari is ineligible to have his status adjusted because h e failed to maintain lawful status in this country from June 10, 2003, until J u n e 8, 2004, a period well in excess of 180 days. See 8 U.S.C. § 1255(k)(2)(a). DHS acknowledges that, during this period of time, Bokhari was permitted to w o r k for Syed under 8 C.F.R. § 274a.12(b)(20), but contends that employment a u t h o r iz a t io n is not a grant of, nor is tantamount to, lawful immigration status fo r the authorized employee; each is a separate and independent consideration. DHS further contends that In re Teberen, 15 I. & N. Dec. 689 (BIA 1976), made c le a r that an extension application, standing alone, does not confer lawful status. Although it is true that Bokhari meets the three statutory eligibility r e q u ir e m e n t s of 8 U.S.C. § 1255(a),3 that is not the end of the analysis. Section 1 2 5 5 (c )(2 ) further provides that Bokhari is not entitled to the adjustment of his s t a t u s if he was "in unlawful immigration status on the date of filing the a p p lic a t io n for adjustment of status or . . . failed (other than through no fault of h is own or for technical reasons) to maintain continuously a lawful status since e n tr y into the United States." Section 1255(c)(2)'s requirements are excused, h o w e v e r , if Bokhari, following his "lawful admission has not, for an aggregate p e r io d exceeding 180 days failed to maintain, continuously, a lawful status." 8 U .S .C . § 1255(k)(2)(a). " L a w fu l immigration status," as the term is used in § 1255(c)(2), is granted n o n im m ig r a n ts "whose initial period of admission has not expired or whose n o n im m ig r a n t status has been extended. . . ." 8 C.F.R. § 1245.1(d)(1)(ii). Bokhari w a s granted L-1A status on June 11, 2002, allowing him to work temporarily in t h e United States for Syed (a legally related entity of Mir Motors, the

An alien is statutorily eligible for relief from removal through adjustment of status if "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a).

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No. 09-60538 in t e r n a t io n a l company Bokhari owns), "in a capacity that [was] managerial [or] e x e c u t iv e ." 8 U.S.C. § 1101(a)(15)(L). Thus, he had lawful immigration status t h r o u g h June 10, 2003. See 8 C.F.R. § 1245.1(d)(1)(ii). We must decide,

h o w e v e r , whether he failed to maintain his lawful status for more than 180 days thereafter; such failure would make him ineligible for the I-145 permanent r e s id e n c e adjustment he sought on June 8, 2004. See 8 U.S.C. §§ 1255(c)(2), (k )(2 )(a ). As we have said, it is undisputed that, while waiting for the adjudication of Syed's I-129 extension application, Bokhari was automatically authorized to c o n t in u e his employment with Syed for "a period not to exceed 240 days b e g in n in g on the date of the expiration of [his] authorized period of stay." See 8 C.F.R. § 274a.12(b)(20). The regulation further provides that such

a u t h o r iz a t io n "automatically terminate[s] upon notification of" DHS's decision d e n y in g the request, which, in this case, occurred on March 19, 2004, cutting s h o r t the 240-day period. See id. The sole focus of our review, however, is w h e t h e r Bokhari's employment authorization, which he received automatically u p o n the filing of Syed's I-129 application for the extension of his status, gave h im legal immigration status, as defined in 8 C.F.R. § 1245.1(d)(1)(ii). As DHS asserts, employment authorization and lawful immigration status a r e two separate considerations, presenting issues independent of each other. We have recognized this distinction in the context of a direct criminal appeal. United States v. Flores, 404 F.3d 320, 327-28 (5th Cir. 2005). In Flores, we held " a n alien may be temporarily granted a stay of removal and be permitted to work d u r in g that stay, but still be considered illegal[]. . . ." Id. (internal citations and q u o t a t io n s omitted). Although Flores is not precisely our case, we find it

p e r s u a s iv e . Moreover, under In re Teberen, a grant of an extension request c o n fe r s lawful status, not the filing of the request. 15 I. & N. Dec. 689, 690. El B a d r a w i found In re Teberen inapplicable because the latter "was decided in 6

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No. 09-60538 1 9 7 6 -- 1 5 years before the INS adopted" 8 C.F.R. § 274a.12(b)(20). 579 F. Supp. 2 d at 276-77. We, however, see no basis to refrain from applying In re Teberen. S e c tio n 274a.12(b)(20), by its plain language, addresses employment

a u t h o r iz a t ion only, and thus does not address an employee's immigration status. IV . W e thus hold that the employment authorization provided to Bokhari u n d e r 8 C.F.R. § 274a.12(b)(20) did not provide him with lawful immigration s t a t u s . We further hold Bokhari was in unlawful immigration status, as defined in 8 C.F.R. § 1245.1(d)(1)(ii), after June 10, 2003, and he unlawfully remained in the United States for more than 180 days thereafter. We therefore hold that b e c a u s e Bokhari failed to maintain lawful status, he was ineligible to have his s t a t u s adjusted under 8 U.S.C. §§ 1255(c)(2), (k)(2)(a). Bokhari's petition for r e v ie w of the order of the BIA pretermitting the question of Bokhari's application a n d ordering him to depart the United States is therefore D E N IE D .

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