Circuit Judge José Cabranes
Lee overstayed his nonimmigrant visa. He sought adjustment to permanent resident status. Generally applicants like Lee who are in the country unlawfully are ineligible for a change of immigration status. Lee invoked the “grandfathering” exception for beneficiaries of labor-certification applications filed by April 30, 2001. Although the subject labor certification application was filed in Jan. 2001, Lee replaced another as its beneficiary in February 2007. Despite having had an opportunity to become a beneficiary by April 30, 2001, he did not do so. In 8 CFR §§245.10(j) and 1245.10(j) the attorney general stated “an alien who was substituted for the previous beneficiary of the application for labor certification after April 30, 2001, will not be considered a grandfathered alien.” The Board of Immigration Appeals upheld an immigration judge’s decision that Lee was not “grandfathered” within the meaning of 8 USC §1255(i). Second Circuit denied Lee review, holding §§245.10(j) and 1245.10(j) entitled to Chevron deference. The attorney general’s rule interpreting 8 USC §1255(i)(1)(B)(ii) as conferring “grandfathered” status on certain labor certification applicationsrather than beneficiarieswas neither arbitrary nor manifestly contrary to the statute.
