245(i) and "approvable when filed"

Doughan v. Holder, No. 09-4287 (6th Cir. June 24, 2011) (unpublished)

The primary issue underlying this case was whether a labor certification that was filed on April 26, 2001, was approvable when filed so as to create grandfathering under 245(i).  This, in turn, would allow this EWI noncitizen to adjust his status based on his marriage to a U.S. citizen. 

The labor certification was returned three years later because the prevailing wage was too low and the listed address was incomplete.  The employer never responded.  The IJ and BIA concluded that the labor certification was not approvable when filed.  The Sixth Circuit did not reach this precise question because a direct petition for review was not filed.  Instead, the noncitizen filed a motion to reopen and reconsider, seeking grandfathering on an even earlier labor certification.  The earlier, 1998, labor certification was supported only by a letter confirming receipt from the California agency.  The BIA denied the motion.

On review, the Sixth Circuit affirmed.  It affirmed the denial of the motion to reopen because the 1998 labor certification was not "new" evidence in that it could have been discovered earlier.

It affirmed the denial of the motion to reconsider because the motion did not include new arguments.  The court did not reach the merits of the "approvable when filed arguments" and only addressed whether the BIA erred in denying the motion to reconsider.  Because the motion did not meet the requirements for a motion to reconsider and the BIA addressed the arguments in the direct appeal, it did not err in denying the motion.

The court seemed sympathetic to this case: the noncitizen lived here a long time, had an approved I-130 petition from his U.S. citizen wife, and was "ill-served" by his prior attorneys.  It may have reached a different conclusion if a direct petition for review was filed, but it did not do so because of the procedural posture of the case.