United States Court of Appeals For the First Circuit No. 19-1258 MARCIO BATISTA DE OLIVEIRA and DEBORA DOS SANTOS OLIVEIRA, Petitioners, v. ROBERT M. WILKINSON, Acting Attorney General of the United States,* Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Chief Judge, and Thompson, Circuit Judge.** Stephanie Marzouk for petitioners. Todd J. Cochran, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and John S. Hogan, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. * Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Robert M. Wilkinson has been substituted as the respondent. ** Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). February 22, 2021 HOWARD, Chief Judge. Marcio and Debora Oliveira, a husband and wife who are natives and citizens of Brazil, petition for review of a ruling of the Board of Immigration Appeals ("BIA") affirming the determination of an Immigration Judge ("IJ") that they were not eligible for an adjustment of status pursuant to the "grandfathering" provisions of § 245(i) of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1255(i). The Oliveiras argue that the BIA applied incorrect standards in determining that a labor certification application ("LCA") filed on behalf of Marcio Oliveira was not "approvable when filed." The Oliveiras also argue that the BIA erred in denying their motion to remand, which contained additional evidence. Because the IJ and BIA did not appropriately focus their inquiry, we grant the petition for review and remand to the BIA for further proceedings. I. We first recount the underlying facts and then, because our task is to evaluate their decisions, summarize the proceedings before and judgments of the IJ and BIA. A. Factual History Marcio and Debora Oliveira independently came from Brazil to the United States on tourist visas in 2000, but both of them overstayed their visas. The two met and married in 2002 and have three children who are United States citizens. - 3 - Sometime in late 2000 or early 2001, Marcio Oliveira became aware of the INA and the "grandfathering" provisions of § 245(i) that would allow individuals meeting specified criteria to remain legally in the United States with qualifying visa petitions or labor certification applications filed on or before April 30, 2001. Oliveira contacted Florida attorney Alan Glueck and was told that Glueck would assist Oliveira in finding an employer with a qualifying job opening who would then file an LCA on behalf of Oliveira. Glueck's office requested, and Oliveira provided, records about Oliveira's employment in Brazil with an accounting company prior to coming to the United States. With Glueck acting as its agent, NF Business Corporation filed an LCA naming Oliveira as the beneficiary for ...
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