On Petitions for Review of Orders of the Board of Immigration Appeals Agency Nos. A079-652-076 & A076-346-685.
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Submitted June 12, 2009*fn1 -- San Francisco, California.
Before: Stephen S. Trott, M. Margaret McKeown and Sandra S. Ikuta, Circuit Judges.
We consider here an alien's eligibility to adjust to lawful permanent resident status via the "grandfathering" regulations implementing § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i) ("§ 1255(i)"). Adjustment of status is generally available only to aliens who were inspected and admitted or paroled into the United States, see INA § 245(a), 8 U.S.C. § 1255(a); however, under § 1255(i), certain aliens who entered this country without inspection may apply for adjustment of status. Section 1255(i) expired on April 30, 2001, and, at present, its benefits are available only to those aliens who qualify as having been "grandfathered" into the provision. See 8 C.F.R. § 245.10(b).
This appeal involves two natives and citizens of Mexico, Victor Landin-Molina ("Landin") and Petra Estrada-Mendoza ("Estrada"), who entered the United States unlawfully. Although these individuals are unrelated, we consolidated their petitions for review with respect to the grandfathering issue.
Landin argues that he is grandfathered by virtue of his marriage to Viviana Ojeda, who adjusted her status as a grandfathered alien. Unfortunately for Landin, the grandfathering provision does not assist his case. Because the marriage occurred after Ojeda adjusted to lawful permanent resident status, she does not impart grandfathered status to him. Estrada argues that she is grandfathered based upon her registration for the Replenishment Agricultural Worker ("RAW") program. She is not grandfathered, however, because being a registrant for the RAW program does not satisfy the requirement of having filed an application for labor certification. Consequently, we deny the petitions.*fn2
I. INA § 245(i), 8 U.S.C. § 1255(i)
Prior to 1952, immigrant status was predicated upon the issuance of an immigrant visa, which could be obtained only at U.S. consular offices abroad. See Choe v. INS, 11 F.3d 925, 928 (9th Cir. 1993). Under that rule, an alien already inside this country could acquire immigrant status only by temporarily leaving the United States to secure an appropriate visa. See id. In 1952, Congress enacted INA § 245, 8 U.S.C. § 1255, which authorized a process - "adjustment of status" - whereby certain aliens physically present in the United States could seek lawful permanent resident status without having to depart this country. Immigration and Nationality Act, Pub. L. No. 82-414, tit. II, ch. 5, § 245, 66 Stat. 163, 217 (1952).
As initially established, this process benefitted only those aliens who were in the United States lawfully. See id.; Succar v. Ashcroft, 394 F.3d 8, 13-14 (1st Cir. 2005). Today, adjustment of status under INA § 245(a), the principal adjustment provision, is available only to aliens who were inspected and admitted or paroled into the United States, and to certain aliens with approved classification petitions brought under the Violence Against Women Act ("VAWA"). See 8 U.S.C. § 1255(a).*fn3
This case involves INA § 245(i), 8 U.S.C. § 1255(i), which authorizes adjustment of status for certain aliens unlawfully in the United States. Congress enacted this "alternative" adjustment provision in 1994. See Pub. L. 103-317, tit. V, § 506(b), 108 Stat. 1724, 1765-66 (1994); see also Gonzales v. DHS, 508 F.3d 1227, 1230 (9th Cir. 2007).*fn4 As amended by the Legal Immigration Family Equity Act of 2000, Pub. L. 106-554, tit. XV, § 1502(a), 114 Stat. 2763, 2763A-324 (2000), § 1255(i) permits aliens who entered the United States without inspection to apply for adjustment of status, provided the alien is the beneficiary of either a petition for classification under 8 U.S.C. § 1154 or an application for a labor certification under 8 U.S.C. § 1182(a)(5)(A). The petition or application must have been filed on or before April 30, 2001. See 8 U.S.C. § 1255(i)(1)(A)-(B). Any qualifying alien's spouse or children, if eligible to receive a visa under 8 U.S.C. § 1153(d), may also seek a status adjustment under § 1255(i); the qualifying alien is called the "principal" alien. Id. § 1255(i)(1)(B).
Upon receipt of the adjustment application, the Attorney General may adjust the status of the alien to that of a lawful permanent resident if "(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately ...