Professional Documents
Culture Documents
urt notes that the respondent has had several attorneys; one
count would reference four to possibly five. One is Aruris Overes [phonetic sp.], then
Jennifer West, then Scott Pasierb, then Sandy Scott, and then current attorney, Mr. GR
Mahmood. The problem that arises in this matter is the Department's denial of the
respondent's request for adjustment of status.
Now, in documents filed by then-counsel Artuis Overes on September 9, 2005,
there is - and let me make that another exhibit because I am going to refer to it. We will
make it Exhibit No. 11; that is a September 9, 2005, letter and table of contents and
documents. Now, the Cour wants to note that the table of contents that we have
indicate page one through page 43 and as the Cour turns the next page, it picks up
with page 41 and then has that and other pages attached to the record. Be that as it
may, the Court then reviews the motion to pretermit and, noting that the file has been
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reconstructed and further noting that some pages are missing, but having given the
parties an opportunity to supplement, which has been extended to both sides, the filings
have now been made as complete as it would appear that they could be. The issue in
this matter is very well defined. The facts developed from the filings of the documents
before the Cour would indicate that on or about April 24, the respondent had a different
counsel apply for a labor certification which would need to be filed, to be grandfathered
under 245(i), by April 30, 2001. That application was prepared and it appears was sent
to the wrong state; it was sent to Texas when it should have been sent to Georgia. That
document reached Texas apparently, from the records in this proceeding, around April
27. But in any event, there was a letter coming back from Texas Department of Labor
indicating that that labor certification request had been received and given a date of
April 30, 2001. That will also be noted in the respondent's first brief in records that he
filed on remand with tabs noted A through K, Exhibit No. 8.
Now, in August of 2001, a letter was mailed to the respondent, to his then
counsel, indicating that this matter had been filed in the wrong state and that that
application had been cancelled. Subsequent to this, there was apparently a proper
filing made, however, due to the fact that the Texas Department of Labor had cancelled
the labor certification request, a new priority date was given, which was after April 30,
2001, which means that the respondent cannot be grandfathered for purposes of
adjustment with the rules and regulations then and there existing. Now, the brief that
has been filed in Immigration Court and also with the Board of Immigration Appeals,
would indicate that that labor certification must be properly filed. In Exhibit No. 10, tab
C, we have an email from trial counsel's ofice to the Texas oficials regarding this labor
certification in Texas and it indicates the cancellation of that application cancelled the
Texas priority date of April 30, 2001. There is also a letter in this file from the Texas
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oficials, indicating that the matter was cancelled and that it would need to be re-filed.
That re-filing was made and then in that particular instance, the application was denied
because of the status of the respondent as he made his application for adjustment of
status. Now, the Court finds that this matter was not properly filed with the correct
Department of Labor; that should have been Georgia instead of Texas. Further that it is
not properly filed; therefore, it has to be re-filed and Texas has cancelled that earlier
filing date and it appears under the regulations that they have the power to do that and
they have written letters that are in this record of proceeding that would substantiate
that. Tab B to Exhibit No. 6 will also reflect that. Some emphasis is given to the
respondent's counsel's argument that the Texas labor oficials should have sent it to the
Georgia labor oficials and therefore that it would be deemed filed when previously filed
and prior to or on April 30,2001. However, the 20 C.F .R. cite given by the respondent's
counsel in the brief also indicates that the local ofice would be the one for the filing and
that was not Texas; the local ofice would have been Georgia. So, in these regulations,
it would appear that the respondent has lost his priority date by filing in the wrong state.
He was represented by counsel and we do not know why counsel filed it in the wrong
state.
Be that as it may, it is clear that Texas cancelled that filing. It is clear that the
respondent attempted to make filings after that fact, but he lost his priority date,
therefore he is not grandfathered fr consideration of adjustment of status under INA
Section 245(i), as his immigrant visa petition or application for labor certification was not
properly filed and approvable when filed. See 8 C.F.R. 245.10. Properly filed is defined
as 11with respect to a qualifying application for labor cerification, that the application was
properly filed and accepted pursuant to the regulations of the Secretar of Labor, 20
C. F.R. 656.21 ". In this matter, the respondent failed to properly file his application for
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labor certification. The matter was erroneously filed with the Texas Workfrce
Commission on April 27, 2001. Due to the backlog of cases then pending, it was not
adjudicated until August 28, 2001; instead then, it was rejected by the Texas Workforce
Commission because it was filed at the wrong location. See Exhibit 8 of the
Department's filing of Exhibit No. 5.
Therefore, the Court finds that the respondent does not have a properly filed
application for labor certification prior to April 30, 2001, and therefore he cannot be
considered grandfathered for purposes of 245(i) eligibility. Therefore, the Cour
pretermits his application, as it has previously notes, and now sets forth the exhibits that
constitute the record and also the specific tabs of those exhibits, which would reflect
that the matter was improperly filed and therefore he cannot be grandfathered under
245(i) regulations.
As to voluntary departure, the Court has no knowledge whether the respondent
has posted the voluntary departure, as was previously noted at the prior Master
Calendar hearing. That is a matter that the Board can take up at its pleasure. The
Court does not have any records in its record of proceedings to reflect whether that was
made or made within the proper five-day time period.
This matter, then, shall be recertified and sent back to the Board of Immigration
Appeals pursuant to their opinion of May 7, 2012.
June 21, 2013
Please see the next page for electronic
signature
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A077-044-013
WAYNE K. HOUSER, JR.
Immigration Judge
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June 21, 2013
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'
//s//
Imigration Judge WAYNE K. HOUSER, JR.
houserw on September 13, 2013 at 11:00 A GMT
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