Hofit Kaspi v. Merrick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HOFIT ETY KASPI; ELIZER KASPI, No. 20-70146 Petitioners, Agency Nos. A094-872-183 A094-872-184 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 11, 2022** Pasadena, California Before: IKUTA, LEE, and FORREST, Circuit Judges. Petitioners Elizer and Hofit Kaspi seek review of the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) order of removal. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. Validity of Visa Petition. Petitioners argue that the United States Citizenship and Immigration Services’ (USCIS) revocation of the I-140 visa petition that Elizer Kaspi’s former employer, Medley Inc., filed on his behalf (Medley Petition) violated Elizer’s right to port the Medley Petition under 8 U.S.C. § 1154(j). The USCIS determines the validity of I-140 visa petitions. 8 U.S.C. §§ 1154(a)(1)(F), 1155. The USCIS revoked the I-140 visa because “[t]he initial evidence submitted with Form I-140 was not sufficient to warrant a favorable decision.” The USCIS notified Medley, Inc. of the revocation, but did not provide notice to Petitioners. Citing Matter of Marcal Neto, 25 I. & N. Dec. 169 (BIA 2010) Petitioners argue that IJs have the authority to determine “whether a visa petition ‘remains valid’ for purposes of porting under [§ 1154(j)].” But Marcal Neto never considered the validity of the underlying I-140 visa petition; the only issue there was whether a valid petition remained valid after the noncitizen1 switched jobs. Id. at 173–76. Here, the question is much different—whether a noncitizen can port a visa petition that the USCIS has revoked as invalid. We rejected a broad reading of § 1154(j) in Herrera v. USCIS, 571 F.3d 881 (9th Cir. 2009). In that case, the USCIS revoked a I-140 visa petition and denied a noncitizen’s pending application to adjust status. Id. at 883. On appeal, the 1 We substitute the term “noncitizen” for its statutory equivalent, “alien,” see 8 U.S.C. § 1101(a)(3), unless explicitly quoting a source using the term “alien,” see Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020). 2 noncitizen argued that the agency could not revoke the visa petition because the noncitizen had met § 1154(j)’s portability requirements. Id. at 885–86. We disagreed and held that § 1154(j) did not change the USCIS’s power and authority to revoke a I-140 visa petition “‘at any time’ for ‘good and sufficient cause.’” Id. at 889 (quoting 8 U.S.C. § 1155). We focused on the limiting language in § 1154(j), which states only that the petition “shall remain valid with respect to [the] new job,” meaning that an I-140 petition …

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