Opinion
No. 08-2522-ag.
February 19, 2009.
Petition for review of an order of the Board of Immigration Appeals ("BIA" or the "Board") affirming an order of the Immigration Judge that petitioner be removed.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review be, and it hereby is, GRANTED.
Appearing for Appellant: Robert C. Ross, West Haven, CT.
Appearing for Appellee: R. Alexander Goring, Trial Attorney (Gregory G. Katsas, Assistant Attorney General, Civil Division, and Michelle Gorden Latour, Assistant Director, on the brief), Office of Immigration Litigation, Washington, D.C.
Danuta Wanda Ziemak, a native and citizen of Poland, seeks review of an April 25, 2008, order of the BIA, In re Danuta Wanda Ziemak, A 77 706 368, dismissing an appeal from a June 27, 2006, decision of an Immigration Judge ("IJ"), which denied her motion for a continuance of her removal proceedings to allow the Labor Department to adjudicate her pending labor certification in advance of a planned visa petition based on that certification and ordered that she be removed to Poland. The BIA also denied Ziemak's motion to remand the case to the IJ on the grounds that her employment-based visa petition had been approved after the case had been appealed to the BIA. We assume the parties' familiarity with the facts and the procedural history of this case, and the scope of the issues presented by this petition.
We remand in light of Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008); see also Ghoniem v. Mukasey, No. 06-5455, 2009 WL 27702, 2009 U.S. App. LEXIS 64 (2d Cir. Jan. 6, 2009). In Rajah, we vacated an IJ's denial of a continuance while the petitioner's labor certification was pending on the grounds that we could not "adequately consider whether the agency abused its discretion in denying petitioner's request for a continuance" due to the "absence of standards that reflect the various situations of those seeking such continuances." Rajah, 544 F.3d at 450. On remand, the BIA was instructed to develop standards that would take into account:
(a) the intent of Congress in creating a mechanism for adjusting status based on labor certification and visa eligibility, as expressed in 8 U.S.C. § 1255(i), (b) the lengthy delays and uncertainties caused by the implementation of this mechanism, and (c) the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still sub judice.
Id. The facts here, like those in Ghoniem, "diverge somewhat from those in Rajah."Ghoniem, 2009 WL 27702, at *1, 2009 U.S. App. LEXIS 64, at *3. In vacating and remanding, we ask the BIA to take into account (1) the effect, if any, in a given case, of an I-140 employment-based visa petition being approved after the agency has acted, but while the case is still sub judice, and (2) any other issues presented by Ziemak's situation that the BIA may consider appropriate, such as the availability of a visa number.
The BIA may choose to remand this matter to the IJ in light ofButt v. Gonzales, 500 F.3d 130 (2d Cir. 2007), so that the IJ can "consider antecedent questions regarding [the petitioner's] eligibility for adjustment of status," including whether she was properly "grandfathered" under the applicable regulations by virtue of having submitted a timely application for labor certification that was "approvable when filed."Id. at 132-33, 135.
The government argues that Ziemak has failed to put forth a prima facie case of her eligibility to be grandfathered. We assume that on this basis the BIA properly denied Ziemak's motion to remand. Nonetheless, her failure to proffer such a prima facie case does not foreclose her direct appeal. The government advanced a similar argument in Butt, noting that the petitioner there had not put forth evidence in the record establishing a prima facie case of eligibility under the grandfathering provisions. See id. at 133 (noting that there was no evidence in the record establishing that the petitioner was physically present in the United States as required by the governing regulations). Nonetheless, the panel in Butt noted that "the agency has not made a finding on this question" and on that basis "remand[ed] the case to the BIA to do so (and to remand to the IJ if necessary)."Id. In this case, the IJ never found Ziemak not to be grandfathered, and to the extent that the BIA may have found otherwise in evaluating the merits of her direct appeal, its doing so would have constituted improper factfinding.See 8 C.F.R. § 1003.1(d)(3)(iv) (noting that BIA "will not engage in factfinding in the course of deciding appeals" except for "taking administrative notice of commonly known facts").
We note finally that at oral argument counsel for the petitioner represented to us that at the time of the hearing before the IJ, he had documentary evidence to establish that the petitioner was "the beneficiar[y] of an application for labor certification filed prior to April 30, 2001," Rajah,
544 F.3d at 452 n. 5, but had declined to proffer it to the IJ in light of the posture of those proceedings.
This panel will retain jurisdiction to rule upon the instant petition and decide the issues on appeal following the disposition of the remand. See Butt, 500 F.3d at 137; Shi Liang Lin v. U.S. Dep't of Justice, 416 F.3d 184, 192 (2d Cir. 2005); United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).
For the foregoing reasons, we GRANT the petition for review, VACATE the BIA's order, and REMAND the case to the BIA for further proceedings. We DISMISS the petitioner's motion for a stay of removal as MOOT.