United States Court of Appeals For the First Circuit

No. 19-1258

MARCIO BATISTA DE OLIVEIRA and DEBORA DOS SANTOS OLIVEIRA,

Petitioners,

v.

ROBERT M. WILKINSON, Acting Attorney General of the United States,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Howard, Chief Judge, and Thompson, Circuit Judge.**

Stephanie Marzouk for petitioners. Todd J. Cochran, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M. Wilkinson has been substituted as the respondent. ** Judge Torruella heard oral argument in this matter and

participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to

(d). February 22, 2021 HOWARD, Chief Judge. Marcio and Debora Oliveira, a

husband and wife who are natives and citizens of Brazil, petition

for review of a ruling of the Board of Immigration Appeals ("BIA")

affirming the determination of an Immigration Judge ("IJ") that

they were not eligible for an adjustment of status pursuant to the

"grandfathering" provisions of § 245(i) of the Immigration and

Nationality Act ("INA").

(i). The Oliveiras argue

that the BIA applied incorrect standards in determining that a

labor certification application ("LCA") filed on behalf of Marcio

Oliveira was not "approvable when filed." The Oliveiras also argue

that the BIA erred in denying their motion to remand, which

contained additional evidence.

Because the IJ and BIA did not appropriately focus their

inquiry, we grant the petition for review and remand to the BIA

for further proceedings.

I.

We first recount the underlying facts and then, because

our task is to evaluate their decisions, summarize the proceedings

before and judgments of the IJ and BIA.

A. Factual History

Marcio and Debora Oliveira independently came from

Brazil to the United States on tourist visas in 2000, but both of

them overstayed their visas. The two met and married in 2002 and

have three children who are United States citizens.

- 3 - Sometime in late 2000 or early 2001, Marcio Oliveira

became aware of the INA and the "grandfathering" provisions of

§ 245(i) that would allow individuals meeting specified criteria

to remain legally in the United States with qualifying visa

petitions or labor certification applications filed on or before

April 30, 2001. Oliveira contacted Florida attorney Alan Glueck

and was told that Glueck would assist Oliveira in finding an

employer with a qualifying job opening who would then file an LCA

on behalf of Oliveira. Glueck's office requested, and Oliveira

provided, records about Oliveira's employment in Brazil with an

accounting company prior to coming to the United States. With

Glueck acting as its agent, NF Business Corporation filed an LCA

naming Oliveira as the beneficiary for the position of "Clerk-

Typist." The LCA had a priority date of April 24, 2001.

After the LCA was filed, Glueck was investigated and

subsequently disbarred for assisting his business partner in the

unlicensed practice of law. Another Florida attorney, Scott

Kimmel, contacted Oliveira to inform him of the investigation into

Glueck. Kimmel's office connected Oliveira with an individual

named Ron Thomas, whom Oliveira understood to be investigating

Glueck on behalf of the federal government. Oliveira spoke with

Thomas on the phone and answered Thomas's questions about Glueck.

Oliveira understood that Kimmel and his office would be taking

over Glueck's representation of Oliveira in connection with the

- 4 - LCA. Oliveira testified at the hearing before the IJ that he made

attempts to get in touch with Kimmel about the LCA, but never

received any updates or copies of the relevant paperwork. As a

result, the Oliveiras lost track of the LCA and its status.

The record before the IJ did not include a copy of the

LCA itself or any paperwork regarding the approval or denial of

the LCA. We do know, however, that Oliveira never received a visa

as a result of the LCA, never worked for NF Business Corporation,

never visited its offices, was never extended a formal job offer

by NF Business Corporation, never had an official job interview

with NF Business Corporation, and, at the hearing before the IJ,

did not have an understanding of the company's business. Oliveira

also did not have a working understanding of the responsibilities

associated with the prospective job, beyond knowing that "it was

like an office job" and testifying that he believed that Glueck

and NF Business Corporation had chosen the job based on the

qualifications and work experience that Oliveira had provided to

Glueck and his colleagues.

In September 2004, the Oliveiras were each served with

a Notice to Appear, neither of which contained a date or time for

a hearing. In 2005, an IJ consolidated the Oliveiras' cases and

the Oliveiras admitted the factual allegations and conceded the

charges of removability in their respective Notices to Appear. In

2015, the Boston & Maine Fish Company filed a new LCA naming

- 5 - Oliveira as the beneficiary, and on April 12, 2016, the Oliveiras

applied to adjust their statuses pursuant to § 245(i).

B. The IJ's Decision

After a hearing in which the Oliveiras were represented

by counsel and Marcio Oliveira testified, the IJ issued an oral

decision denying the Oliveiras' application for adjustment of

status and ordering them removed to Brazil. Relying on our

decision in Santana v. Holder,

(1st Cir. 2009), the

IJ held that the Oliveiras bore the burden of demonstrating that

the LCA was "approvable when filed," meaning it was: (1) properly

filed, (2) meritorious in fact, and (3) non-frivolous. See

(a)(3). The IJ found that Oliveira had not met

that burden with respect to the "meritorious in fact" requirement

based on the lack of documentary evidence provided by the Oliveiras

and the lack of a relationship between Marcio Oliveira and NF

Business Corporation. The IJ expressly declined to address whether

the LCA was properly filed or non-frivolous. The IJ also did not

discuss the BIA decision in Matter of Muhammad Imran Butt ("Matter

of Butt"),

(BIA 2013), in which the BIA set

forth a standard to determine whether an LCA, as distinct from a

visa petition, was meritorious in fact. The IJ stated that "[t]his

is a case that comes down to the respondent simply being unable to

meet his burden."

- 6 - C. The BIA's Decision

On February 8, 2019, the BIA affirmed the ruling of the

IJ. The BIA both adopted the IJ's ruling ("For the reasons stated

by the Immigration Judge, we decline to disturb the Immigration

Judge's determination.") and added its own legal rationale. The

BIA quoted its prior decision, Matter of Butt, at length, stating

that:

A labor certification is 'meritorious in fact' if it was 'properly filed' and 'non-frivolous, []so long as a bona fide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and where there is no evidence that the labor certification is based on fraud.'

(quoting Matter of Butt, 26 I. & N. at 116). The BIA concluded

that, although he "acted with good faith and with due diligence,"

because Oliveira (1) had never met with the employer, (2) did not

know the job requirements, and (3) never received a job offer from

the employer, he had failed to demonstrate the existence of the

employment relationship required by

(a)(3) and

Matter of Butt. Like the IJ, the BIA declined to address whether

the LCA was "properly filed" or "non-frivolous," addressing only

the "meritorious in fact" prong.

While their appeal to the BIA was pending, the Oliveiras

filed a Motion to Remand containing new evidence that they claimed

had been previously unavailable. The proffered evidence showed

that Attorney Glueck's business partner, Elyane Bechtinger, was

- 7 - named as an officer of NF Business Corporation in 2002. Oliveira

also offered an additional affidavit recollecting that he had

spoken to Bechtinger about the prospective job at NF Business

Corporation as part of his dealings with Glueck around the time

that Oliveira submitted paperwork regarding his previous work

experience, and that Oliveira's conversation with Bechtinger had

served as a job interview for the position at NF Business

Corporation, which she offered to him.

The BIA denied the Oliveiras' Motion to Remand on the

basis that the Oliveiras had failed to show that the evidence was

previously unavailable. The BIA also found that the evidence would

not change the outcome of the case because it was insufficient to

show that the required employer/employee relationship existed.

II.

We review the BIA's findings of law de novo and its

findings of fact under the substantial evidence standard, "asking

whether the BIA's determination is 'supported by reasonable,

substantial and probative evidence on the record considered as a

whole.'" Santana,

(quoting De Acosta v. Holder,

(1st Cir. 2009)); see also Aguilar-Escoto v.

Sessions,

(1st Cir. 2017). "We consider BIA

and IJ decisions together where the Board adopts and supplements

the IJ's reasoning." Aguilar-Escoto,

(internal

quotation marks omitted) (citing Martinez v. Holder,

,

- 8 - 111 n.15 (1st Cir. 2013)). We review the BIA's decisions on

Motions to Remand (or Reopen) for an abuse of discretion. See

Pakasi v. Holder,

(1st Cir. 2009); see also Ming

Chen v. Holder,

(1st Cir. 2013).

III.

The Oliveiras make three arguments on appeal: (1) the

BIA applied an incorrect standard in determining whether the LCA

was meritorious in fact; (2) the BIA erred in finding that the LCA

was not meritorious in fact; and (3) the BIA erred in refusing to

remand on the basis of the Oliveiras' additional evidence. Because

we agree with the Oliveiras' first argument, we need not address

the other two.

The Oliveiras argue that they are eligible for

adjustment of status, "a process whereby certain aliens physically

present in the United States may obtain permanent resident status

. . . without leaving the United States." Santana,

(alterations in original) (quoting De Acosta,

)

(internal quotation marks omitted). The INA provides that

individuals meeting certain requirements are eligible for

adjustment of status through "grandfathering," and therefore are

not removable. See

(i). To qualify for

grandfathering, an individual must have been physically present in

the United States on December 21, 2000, and be the beneficiary of

a visa petition or LCA that was filed on or before April 30, 2001.

- 9 - See

(setting forth the specific requirements for

grandfathering under INA § 245(i)). The visa petition or LCA must

have been both (i) properly filed and (ii) approvable when filed.

See

(a)(1)(i).

The parties agree that the Oliveiras were physically

present in the United States as of December 21, 2000, and an LCA

filed by NF Business Corporation naming Marcio Oliveira as the

beneficiary was filed with a priority date of April 24, 2001.

Therefore, if that April 24, 2001 LCA was approvable when filed

and properly filed, Marcio Oliveira and, derivatively, Debora

Oliveira are eligible to adjust their respective statuses under

§ 245(i).

We agree with the IJ and the BIA that, for an LCA to be

approvable when filed, it must have been, on the date it was filed

and under the circumstances that existed at the time of filing:

(1) properly filed, (2) meritorious in fact, and (3) non-frivolous.

(a)(3) (defining "frivolous" to mean "patently

without substance"). An LCA that meets the above requirements

qualifies an individual for grandfathering even if "later

withdrawn, denied, or revoked due to circumstances that have arisen

after the time of filing." Santana,

(quoting

(a)(3)) (internal quotation marks omitted).

The BIA and IJ expressly declined to address whether the

LCA was properly filed or non-frivolous. Instead, they based the

- 10 - denials of relief solely on their finding that the LCA was not

meritorious in fact.

Cases examining the meritorious-in-fact standard have

generally interpreted it to require that the petitioner

demonstrate that the visa petition or LCA qualified for approval

under the standards in effect at the time it was filed. See, e.g.,

Agor v. Sessions,

, 62 (2d Cir. 2018) ("The issue

is whether the petition merited a legal victory upon filing, even

if it was later abandoned or denied based on a change in

circumstances." (internal quotation marks omitted)); Ogundipe v.

Mukasey,

(4th Cir. 2008) ("[A] visa petition is

meritorious in fact for purposes of grandfathering under

if, based on the circumstances that existed at the time

the petition was filed, the beneficiary of the petition qualified

for the requested classification."); Butt v. Gonzales,

(2d Cir. 2007) (reading the standard to "requir[e] that,

based on the facts as they exist at the time of filing, the

application should be granted"); Ali v. Gonzales,

(7th Cir. 2006) (declining to review an IJ's denial of a

petition to adjust status where the petitioner's application "on

its face showed that he was not minimally qualified for the job");

Bustos v. Napolitano,

, at *4 (D. Ut. Oct. 29, 2012)

(remanding to determine whether the LCA "merit[ed] a legal victory"

or "ha[d] legal worth" (internal quotation marks omitted)).

- 11 - In Matter of Butt, the BIA set forth a standard for

making that determination in the case of LCAs specifically,

focusing on the flexible, collaborative nature of the LCA approval

process in the late 1990s and early 2000s. 26 I. & N. Dec. at

114-117. The BIA looked to historical efforts by the former

Immigration and Naturalization Service ("INS") to consult with the

Department of Labor ("DOL") to determine what makes an LCA

"approvable when filed." Id. at 115-16. The BIA summarized:

[T]he DOL indicated that the agency does not have the ability to state definitively whether a certification will be meritorious until its adjudication is complete. . . . Therefore, the former INS adopted an approach that focused on whether a [labor certification] was "non-frivolous" and "properly filed" in presuming that most labor certifications meeting these requirements would also satisfy the "meritorious in fact" requirement for grandfathering purposes.

Id. at 116. The BIA then adopted its own definition of

"meritorious in fact" in accord with the INS's approach, holding:

[W]e conclude that a labor certification is "meritorious in fact" if it was "properly filed" and "non-frivolous," so long as a bona fide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and where there is no evidence that the labor certification is based on fraud. . . . In other words, a labor certification will be presumed to be "meritorious in fact" if it was "properly filed" and "non-frivolous," absent any apparent bars to its approval. Accordingly, a "properly filed" and "non- frivolous" labor certification will generally be "meritorious in fact" and thus, in turn, will also be "approvable when filed."

- 12 - Id. at 116-17.1

The Oliveiras interpret Matter of Butt to create a

burden-shifting standard under which the Oliveiras' initial burden

is only to demonstrate that the LCA was properly filed and non-

frivolous. After that burden is satisfied, the Oliveiras argue,

the burden shifts to the agency to raise any apparent bars to the

approval of the LCA. If the government presents such apparent

bars, the burden would presumably shift back to the Oliveiras to

demonstrate that the LCA nonetheless merited approval. The

Oliveiras therefore argue that both the IJ and the BIA erred in

focusing on whether the Oliveiras met a burden on the "meritorious

in fact" prong as an initial matter.

Putting aside whether the Administrative Procedure Act

would require the BIA to abide by its previous decisions, we

decline to adopt the Oliveiras' proposed burden-shifting framework

for three reasons. First, the Oliveiras have read Matter of Butt

too mechanically. Matter of Butt itself never mentions shifting

burdens. It does say that an LCA will be "presumed" to be

1 Another consideration unstated in Matter of Butt but relevant to the standard for determining whether an LCA is meritorious in fact is that, unlike the approval of a visa petition, the approval of an LCA is governed by regulations promulgated by the DOL, not by the DHS or the DOJ. See generally

. Those DOL regulations are not necessarily within the area of special expertise for the IJ and BIA, and the BIA may be hesitant to direct IJs to perform full explorations of the DOL regulations as they were in place and applied in 2001.

- 13 - meritorious in fact, but that presumption comes only "absent any

apparent bars to its approval." 26 I. & N. Dec. at 116. It also

clearly requires "a bona fide employer/employee relationship . . .

where the employer has the apparent ability to hire the sponsored

alien." Id.

Second, and more importantly, such a rigid burden-

shifting framework would be inconsistent with our precedent and

the caselaw of other circuits, which keep the burden on the

petitioner and focus more holistically on the legal merit and

approvability of both visa petitions and LCAs. Although it was in

the context of a visa petition instead of an LCA, we have

previously rejected the kind of burden-shifting proposed by the

Oliveiras, stating that "[t]he [petitioners'] argument that this

record evidence cannot be relied upon to deny them grandfathering

amounts to an attempt to shift their burden of establishing

eligibility for grandfathering to one requiring the agency to

disprove eligibility for grandfathering. As we have said, the

burden was the petitioners' to bear." Santana,

.

There, we kept a holistic focus on the legal merit of the visa

petition.

. We found that the BIA's denial of

grandfathering was supported by substantial evidence where, in the

initial visa approval process, a notice of intent to revoke the

petition identified "derogatory information" that cast doubt on

the approvability of the petition.

.

- 14 - Similarly, we have rejected a petition challenging a BIA

decision that denied grandfathering on the basis of an LCA, stating

that "a finding of 'identified gaps' in a petitioner's application,

where the petitioner has [had] . . . opportunity to explain the

gaps but failed to do so, was sufficient to show that the

application was not meritorious in fact." Da Cunha v. Mukasey,

(1st Cir. 2008) (citing Echevarria v.

Keisler,

(1st Cir. 2007)); see also De Acosta,

(keeping the burden on the petitioner while

focusing on the definition of "properly filed").

Other circuits have also embraced a holistic approach to

determining whether an LCA is "approvable when filed," and have

placed the burden squarely on the petitioner. See Hyeng Kab Lee

v. Holder,

(4th Cir. 2010) (remanding to the

BIA to "review the 'totality of the circumstances' surrounding a

labor certificate"); Ali,

(upholding a

determination that an LCA was not "meritorious in fact" where the

petitioner was "not minimally qualified for the job"); Bustos,

, at *4 (remanding to determine whether the LCA

"merit[ed] a legal victory" or "ha[d] legal worth").

Finally, we note that the rigid framework proposed by

the Oliveiras could create an incentive for petitioners to withhold

information about an LCA to prevent the government from using that

information to identify apparent bars to approvability. This

- 15 - would, in effect, make it more difficult for the IJ, the BIA, and

reviewing courts to determine whether an LCA was approvable when

filed.

We therefore decline to adopt a burden-shifting

framework for determining whether an LCA is approvable when filed.

Instead, we hold, consistent not only with Matter of Butt but also

with Santana, Da Cunha, and Echevarria, that determining whether

an LCA is approvable when filed requires a holistic inquiry that

keeps the burden on the petitioners and focuses on whether the LCA

merited a legal victory at the time and under the circumstances in

which it was filed. A petitioner bears the burden of demonstrating

that the LCA in question did not have the kinds of "identified

gaps" we referenced in Da Cunha,

, "apparent

bars" the BIA referenced in Matter of Butt, 26 I. & N. Dec. at

116, or "derogatory information" we referenced in Santana,

.

That holistic inquiry, however, is not a license to deny

grandfathering based on any perceived shortcoming in an LCA. In

order to form a basis for the denial of an adjustment of status,

the identified gap, apparent bar, or derogatory information must

be tied to the evaluation of the legal merit of the LCA. The

ultimate subject of the inquiry must always be whether an LCA

should have been approved by the DOL at the time and under the

circumstances in which it was filed.

- 16 - Here, the IJ and the BIA did not keep their focus on

that inquiry in the course of their evaluation of Oliveira's LCA.

The IJ was correct that the Oliveiras bore the burden of

demonstrating that the LCA was meritorious in fact, and it

identified facts that it concluded undermined the LCA. But the IJ

did not tie those facts to the standards or practices used by the

DOL to approve an LCA in 2001. Similarly, the BIA cited Matter of

Butt and identified facts to support its conclusion that "there is

insufficient evidence that the employment relationship existed,"

but it failed to explain what aspects of an "employment

relationship" it was examining, or how the facts that it cited

demonstrated the lack of such a relationship. See, e.g., Browning-

Ferris Indus. of California, Inc. v. Nat'l Labor Relations Bd.,

(D.C. Cir. 2018) (exploring the nature of employer-

employee relationships over the course of more than 40 pages).

After all, the beneficiary of an LCA cannot become an employee or

enter into an employment relationship until after the LCA is

approved. See

(2001) (governing the

approvability of LCAs in 2001 and contemplating that the

application process will take place before employment commences).

By contrast, in Matter of Butt itself, the BIA focused on the

apparent ability of the employer to hire the petitioner, tying

that focus to the former INS's inquiry into the DOL's LCA approval

procedures. 26 I. & N. Dec. at 116.

- 17 - The focus of the BIA's inquiry in this case is further

obscured by its unexplained conclusion that the additional

evidence proffered by the Oliveiras in their Motion to Remand would

be insufficient to change the BIA's determination that the

requisite employer/employee relationship did not exist.

Oliveira's additional affidavit claimed: (1) at the time the LCA

was filed, NF Business Corporation was a Massachusetts corporation

in good standing, (2) Elyane Bechtinger was an officer of NF

Business Corporation in 2002, not long after the LCA was filed,

(3) Bechtinger interviewed Oliveira for a job with NF Business

Corporation, and (4) at the conclusion of the interview, Bechtinger

offered Oliveira the job. The BIA thus necessarily concluded,

without explanation, that Oliveira would lack the requisite

employer/employee relationship even if he interviewed with an

officer of the employer who filed the LCA, a corporation in good

standing, and that officer offered him the job referenced in the

LCA. That conclusion further muddies the BIA's analysis, rendering

it unclear what kind of employer/employee relationship the BIA is

looking to find, what the "identified gaps" in the LCA were, what

the "apparent bars" to its approvability were, or what the

"derogatory information" about it was. The BIA's decision thus

obscures the relationship between any perceived gaps and the

standards or procedures used by the DOL for approving LCAs in April

2001.

- 18 - By contrast, in Da Cunha we noted that "the IJ identified

a specific discrepancy in the labor certification application."

. The "identified gap" in that case was the

prospective employer's "inactive" status with the relevant state

department of labor and the employer's failure to pay unemployment

taxes for its workers.

Unlike here, then, the "identified

gap" in Da Cunha tied directly to the prospective employer's

ability to hire the petitioner.

Similarly, in Echevarria, the gaps that supported the

denial of grandfathering were identified in the first instance by

the immigration officer evaluating the visa petition.

. The immigration officer relied on those gaps to deny the

visa petition, making clear the relevance of those gaps to the

petition's legal merit.

Here, neither the BIA nor the IJ

connected the perceived factual deficiencies to the standards and

procedures governing the LCA's legal merit. See also Ogundipe,

(tying the determination that the visa petition

was not meritorious in fact to the specific requirements of

(m)(4)).

In examining petitions for review of BIA decisions, we

have held that "our review is limited to the reasoning articulated

below." Mejia v. Holder,

(1st Cir. 2014) (quoting

Patel v. Holder,

, 80 n.1 (1st Cir. 2013)). "A reviewing

court should judge the action of the BIA based only on reasoning

- 19 - provided by the agency, not based on grounds constructed by the

reviewing court, and that basis must be set forth with such clarity

as to be understandable." Mihaylov v. Ashcroft,

, 21

(1st Cir. 2004) (internal quotation marks and citations omitted);

see also Khattak v. Holder,

(1st Cir. 2013)

(remanding to the BIA because it had failed to present "a reasoned

analysis of the evidence as a whole" (internal quotation marks

omitted)).

The BIA and the IJ have not met that standard here.

While they correctly undertook a holistic inquiry into

approvability and kept the burden on the petitioners to demonstrate

that the LCA was "meritorious in fact," neither the IJ nor the BIA

articulated reasoning that connected the facts and circumstances

of the Oliveiras' LCA to the standards and procedures used to

approve LCAs in 2001.

IV.

We therefore grant the petition for review, vacate the

order of the BIA, and remand to the BIA for further proceedings

consistent with this opinion.2

2 Because we decide that the BIA has failed to apply the correct standard for determining whether an LCA is meritorious in fact, we do not decide whether the evidence supported the BIA's determination that the LCA was not meritorious in fact or whether the BIA's denial of the Oliveiras' Motion to Remand was an abuse of discretion. Nor do we decide any other issues raised by the petitioners.

- 20 -