Monday, May 18, 2009

Butt (Not Precedential): BIA Cannot Deny Motion To Reopen For Lack Of Approved Labor Certification By Ignoring Approved Labor Certification

Butt v. Holder
Not Precedential
May 15, 2009

Judges Fisher, Jordan, and Van Antwerpen
Per Curiam

In this case, two people wanted an IJ to hold off on a case and later wanted the BIA to remand the case back to the IJ based on the potential for obtaining legal permanent residence through an employment-based application. There are generally three steps: the worker files a labor certification application with the Department of Labor, when that's approved the worker files the approved certification with an I-140 petition, and when a visa is ready for the I-140 petition the worker files an I-485 application for LPR status.

At the time the case was with IJ Frederic Leeds, there was no approved labor certification so it was acceptable for the IJ at some point to decide not to delay the case.

The mistake took place with the BIA, not IJ Leeds. In front of the BIA, one of the two immigrants asked for the case to be sent back down to the IJ because by that time, one person had all three elements -- an approved labor certification, a filed I-140 petition, and a filed I-485 application.

Bizarrely and improperly, the BIA ruled that the man who provided proof of an approved labor certification had not provided any evidence that he had an approved labor certification. It seems like a clear mistake for the BIA to conclude that the man did not provide proof of an item that the man actually provided in his submissions. Based on this clear mistake, the Third Circuit overturned the BIA and sent the case back to the BIA to complete its analysis.

As for the other immigrant, that other person had no proof of an approved labor certification, so it was acceptable for the BIA to decide not to send the case back down to the IJ.


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