Landin-Molina v. Holder (9th Cir. September 1, 2009)
MCKEOWN, Ikuta, Trott
This is a consolidated PFR for two petitioners (Landin and Estrada), both of whose cases involve 245(i).
Petitioner Landin was ordered removed in 2004 and married Escobar shortly thereafter. Escobar had adjusted status to LPR via 245(i), and Landin argued that he was grandfathered and eligible to adjust under 245(i) by virtue of this marriage and a subsequent I-130. Unfortunately for the couple, Landin did not marry Escobar until after she had adjusted status. The Court looked to the statutory text of 245(i), its implementing regulations, and USCIS/INS guidance memoranda to determine that, in order to be grandfathered after 245(i)’s sunset date, an alien must be “following to join” another alien grandfathered under that provision. An alien is only following to join if the predicate relationship existed at the time that the alien adjusted status. (The CtApp found INS’s 245(i) guidance memo on this point persuasive under Skidmore deference.)
Petitioner Estrada sought to adjust status through marriage to a USC. She is ineligible under 245(a) because she is EWI, so her argument relied on 245(i). She argued that she is grandfathered due to her 1989 registration under the Repelenishment Agricultural Worker (RAW). The issue is whether RAW registry constituted a labor certification that was approvable when filed. The CtApp noted that RAW registry conferred no prospective eligibility for LPR status, but only put her on a list of workers who could petition for temporary or permanent resident status if it was subsequently determined that a shortage of agricultural workers existed. In fact, no such shortage was ever determined, and no petitions under the RAW program were ever accepted. The CtApp found that RAW registry was therefore not analogous to a labor certification that was approvable when filed.
Read opinion here.