United States Court of Appeals
                         For the First Circuit


No. 08-1399

                     FRANCISCO ANTONIO CASTRO-SOTO,

                              Petitioner,

                                   v.

                 ERIC H. HOLDER, JR.*, Attorney General,

                              Respondent.


                 ON PETITION FOR REVIEW OF AN ORDER OF
                    THE BOARD OF IMMIGRATION APPEALS


                                 Before

                  Boudin, John R. Gibson,** and Howard,
                             Circuit Judges.



     Ramon M. Gonzalez, for petitioner.
     Gregory G. Katsas, Assistant Attorney General, Civil Division,
John S. Hogan, Senior Litigation Counsel and Regan Hildebrand,
Attorney, Office of Immigration Litigation, United States
Department of Justice, for respondent.



                           February 24, 2010



*
 Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
substituted for former Attorney General Michael B. Mukasey as the
respondent herein.
**
     Of the Eighth Circuit, sitting by designation.
           HOWARD, Circuit Judge.      Francisco Antonio Castro-Soto, a

citizen and national of the Dominican Republic, petitions for

review of the denial of his application for adjustment of status.

The Board of Immigration Appeals ("BIA") determined that Castro-

Soto was ineligible for adjustment of status because he entered the

United States illegally and could not be "grandfathered" under

Section 245(i) of the Immigration and Nationality Act ("INA"), 8

U.S.C. § 1255(i).       After review, we agree and deny his petition.

                                      I.

           In 2005, Castro-Soto entered the United States illegally.

He was subsequently detained and charged with removability. At his

removal proceeding, Castro-Soto sought adjustment of status, "a

process whereby certain aliens physically present in the United

States may obtain permanent resident status . . . . without leaving

the United States."      De Acosta v. Holder, 

, 18 (1st Cir.

2009).   In requesting adjustment, Castro-Soto relied in part on an

I-130 visa petition that his spouse had filed on his behalf in

December 2004. Despite a statutory bar against adjustment by those

who have entered the country illegally, Castro-Soto asserted that

the visa petition could support adjustment of his status, because

he was "grandfathered" based on a previous visa petition that had

been filed on his behalf several years earlier.

           This   was    not   the   first   time   that   Castro-Soto   had

attempted to adjust his status based on his marriage to a United


                                     -2-
States citizen.      He first entered the United States in 1988.1          At

some point thereafter, he married his first wife, a United States

citizen.     In March 1992, she filed an I-130 petition on his behalf,

seeking to qualify him as an immediate relative-spouse.                See 8

U.S.C.   §   1154(a)(1)(A)(i);     8   C.F.R.   §   204.1(a)(1);   8   C.F.R.

§ 204.2(a).

             Based   on   his   then-spouse's   immediate   relative    visa

petition, Castro-Soto filed an I-485 application for adjustment of

status to that of lawful permanent resident.          See 8 U.S.C. § 1255;

8 C.F.R. § 245.1(a). The immediate relative visa petition received

final approval in June 1992, and in December 1992 Castro-Soto's

application for adjustment of status was also approved.

             The approval of the application for adjustment of status

contained conditions, however.          Under the INA, when an alien who

has been married to a United States citizen for less than two years

receives permanent resident status by virtue of that marriage, the

grant of permanent resident status is conditional.             8 U.S.C. §

1186a.     The alien and his spouse must submit a second petition

requesting the removal of conditions, at which point the government

may terminate the alien's permanent status if it finds that the


1
 The record is clear that Castro-Soto obtained conditional lawful
permanent residence in December 1992. The government says that he
first entered the United States in 1988, citing a transcript of a
hearing that was held below. This date appears accurate, as the I-
130 form filed by Castro-Soto's first wife on his behalf indicates
that he arrived in December of 1988. We thus identify 1988 as his
arrival year, although this fact is immaterial to our analysis.

                                       -3-
marriage is not bona fide.           8 U.S.C. § 1186a(c), (d).            If the alien

fails to have the conditions to lawful permanent residence removed,

his permanent resident status is terminated as of the date of that

determination. 8 U.S.C. § 1186a(c)(3)(C).

            Castro-Soto and his spouse did later petition for removal

of the conditions, but their petition was denied.                       An Immigration

Judge    ("IJ")       subsequently    found    that    the   petition         to   remove

conditions had been denied because the "[g]overnment questioned the

bona fides of the marriage and the intent of the marriage."

            Castro-Soto and his first wife divorced in 2001. He then

sought relief from the consequences of the previous denial of the

joint petition for removal of conditions, through an application

for a waiver based on a good faith marriage ending in divorce.                         In

June 2002, the Department of Homeland Security ("DHS") denied the

waiver application and placed Castro-Soto in removal proceedings.

See 8 U.S.C. § 1227(a)(1)(D)(i) (classifying as "deportable" aliens

whose conditional permanent resident status has been terminated).

            During removal proceedings, Castro-Soto again sought a

waiver    for     a    good   faith    marriage       ending       in   divorce,     and

alternatively         requested   cancellation     of   removal         and   voluntary

departure.      In September 2003, the IJ, though granting Castro-Soto

voluntary    departure,       denied    his    requests      for    cancellation      of

removal and for a waiver.            Castro-Soto appealed the IJ's decision

to the BIA, which affirmed the IJ's decision in December 2004.


                                         -4-
            Also in 2004, Castro-Soto remarried. In January 2005, he

left the country pursuant to the voluntary departure order, but not

before filing a motion to reopen his case so that he could apply

for adjustment of status based on his second wife's petition to

categorize him as an immediate relative.2        He reentered the United

States illegally eight days later and was subsequently placed in

removal proceedings.      Before the IJ, Castro-Soto again sought

unsuccessfully to adjust his status, claiming that he was permitted

to   rely   on   the   more   recent     visa   petition   because   of     a

grandfathering mechanism triggered by the 1992 visa petition.             The

BIA affirmed the IJ's order pretermitting Castro-Soto's application

for adjustment.

                                   II.

            Before us, Castro-Soto continues to argue that he is

entitled to rely on the earlier I-130 petition filed in 1992 to

adjust his status now.        Typically, aliens who enter the United

States without inspection or parole are prohibited from applying

for adjustment of status.      Echevarria v. Keisler, 

, 19

(1st Cir. 2007); see also 8 U.S.C. § 1255(a), (c).         An exception to

this general rule exists for beneficiaries of visa petitions that


2
 The BIA denied this motion to reopen in January 2005.           It
concluded that Castro-Soto could not adjust status based on his
second-wife's 2004 visa petition because he failed to produce clear
and convincing evidence that his second marriage was bona fide.
Castro-Soto did not petition for review of this decision, although
he did file a motion to reconsider, which the BIA denied in March
2005. Castro-Soto did not appeal that ruling.

                                   -5-
were   filed      before        April        30,     2001.        See    8    C.F.R.

§ 245.10(a)(1)(i)(A), (B); 

. Castro-Soto

claims that because he is the beneficiary of his first wife's 1992

visa petition, he qualifies under this grandfathering provision to

file again for adjustment.

           An    alien    may    qualify       for    grandfathering     if   he   is

physically present and the "beneficiary" of a visa petition. §

245.10(a)(1)(i).        The visa petition relied upon by the alien must

have been (1) filed before April 30, 2001, (2) "properly filed,"

and (3) "approvable when filed".              

(a)(2)(i);

(a)(3).3   If the visa petition has met these three requirements, it

may be used for grandfathering purposes even if it "was later

withdrawn, denied, or revoked due to circumstances that have arisen

after the time of filing".             

see also, 

.         The applicant bears the burden of proving his

eligibility for adjustment of status.                8 C.F.R. § 1240.8(d).

           The BIA did not question whether the 1992 visa petition

upon which Castro-Soto is relying for grandfathering purposes

satisfied 245.10's three requirements.                Rather, it concluded that

Castro-Soto     could    not    rely    on    the    1992    petition   because    the

government had granted it, and Castro-Soto had relied upon the

petition to gain conditional lawful permanent residence. The Board


3
 To be "approvable when filed," a visa petition must have been:
"properly filed, meritorious in fact, and non-frivolous." 

                                         -6-
further stressed that Castro-Soto had not only adjusted his status

using his ex-wife's visa petition, but also "later failed to obtain

removal of the conditions on his permanent residence."

            Our review of the BIA's decision is circumscribed.         When

Congress has entrusted rulemaking and administrative authority to

an agency, as it has done with the INA, "courts normally accord the

agency particular deference in respect to the interpretation of

regulations promulgated under that authority." S. Shore Hosp. Inc.

v. Thompson, 

, 97 (1st Cir. Mass. 2002).            We defer to

the agency's interpretations of regulations of its own creation

unless the agency's position is "plainly erroneous or inconsistent

with the regulation."         Massachusetts v. United States, 

, 127 (1st Cir. 2008).         We conclude that it was not plainly

erroneous or inconsistent with the regulation for the BIA to find

that Castro-Soto had obtained all of the benefit due to him based

on   the   1992   petition,    and   that   the   petition   was   therefore

extinguished and cannot now provide grandfathered status.4




4
 The government takes the position that, once Castro-Soto initially
obtained the benefit of conditional permanent residence, the
petition was no longer available to be used for grandfathering.
The government's position may be correct, but we are not certain
that the BIA's ruling is quite that broad, and we need not adopt
the broader reading in order to reject the petitioner's argument.
We are not here faced with a situation in which, for example, the
petitioner obtained conditional resident status and then, prior to
the deadline for petitioning to remove the conditions, sought to
rely on the grandfathered petition to adjust status on a different
basis.

                                     -7-
           Congress has generally allowed only lawfully present

aliens to adjust their status while in the United States, in order

"to discourage intending immigrants from moving to the United

States before becoming fully eligible for permanent residence and

to encourage them to follow the orderly consular process for the

issuance   of   immigrant   visas."     Lee   v.   U.S.   Citizenship   &

Immigration Servs., No. 08-1659, 

, at *4

(4th Cir. Jan. 25, 2010).    In 1994, however, Congress temporarily

lifted restrictions on certain illegal aliens who sought adjustment

of status.      

clause, instituted after the

expiration of this 1994 Act, "aimed to protect those who had

legitimate visa applications on file before the more restrictive

amendment came into force excluding applications on behalf of those

who entered illegally."      

.        We have

observed that it was not these applicants' fault "that it might

take time to process applications that had been filed before the

law changed." 

not an illogical corollary that an applicant's

grandfathered status should expire once he has obtained all of the

benefits available through a visa petition.        The DHS reached this

very conclusion in a 2005 policy memorandum in considering the

potential for multiple filings for adjustment of status under

Section 245(i):




                                  -8-
          A grandfathered alien is eligible to file an
          application to adjust status under section
          245(i) as long as the alien meets the
          requirements of 8 C.F.R. 245.10 and has not
          adjusted status under section 245(i). USCIS
          no longer considers an alien "grandfathered"
          once the alien is granted adjustment of status
          under section 245(i), because the alien has
          acquired   the   only  intended   benefit   of
          grandfathering:   [Lawful Permanent Resident]
          status.



Interoffice Memorandum from William R. Yates, Associate Director

for   Operations,    U.S.   Citizenship    and   Immigration    Services,

Department   of     Homeland   Security,   Clarification   of     Certain

Eligibility Requirements Pertaining to an Application to Adjust

Status under Section 245(i) of the Immigration and Nationality Act,

HQOPRD 70/23.1 at 6 (March 9, 2005).       This guidance memorandum is

entitled to our respect to the extent that it is persuasive.         See

Christensen v. Harris County, 

, 587 (2000).5


5
 The quoted language is consistent with the regulations themselves,
which provide that certain visa petitions approvable when filed but
later "withdrawn, denied or revoked due to circumstances that have
arisen after the time of filing" can still be used to establish an
alien's grandfathered status. 8 C.F.R. § 1245.10(a)(3). Castro-
Soto's spouse's 1992 petition was approved, and it was never
revoked. Indeed, although the regulations provide for automatic
revocation under certain circumstances -- for example, divorce --
this provision is only triggered when the circumstance occurs
before the government's final decision on the beneficiary's
adjustment application. 8 C.F.R. § 1205.1 (a)(3). Castro-Soto's
adjustment of status was granted in December, 1992. He and his
first wife did not divorce until 2001.
      Nowhere do the regulations state that an approved petition, as
opposed to one that is pending, withdrawn, denied or revoked, can
be used to preserve the alien's grandfathered status.       The BIA
could reasonably conclude from this silence that this exclusion was

                                   -9-
           Castro-Soto argues that his 1992 visa petition was never

extinguished because he never acquired lawful permanent resident

status without conditions.         DHS's 2005 memorandum, he observes,

explains   that    the   government    "no   longer   considers    an    alien

'grandfathered' once the alien is granted adjustment of status

under Section 245(i) because the alien has acquired . . .            [Lawful

Permanent Resident] status" (emphasis added). Castro-Soto urges us

to hold that because he only acquired conditional lawful permanent

resident status, his 1992 visa petition is still available for

purposes of grandfathering.

           No     persuasive    authority    is   cited   to   support    this

interpretation, and in any event there is a significant problem

with it.   Were we to adopt Castro-Soto's view, all grandfathered

aliens who, because of their own lack of proof, failed to remove

conditions attached to their lawful permanent resident status could

simply fling infinite subsequent petitions or applications for

adjustment until one happened to stick.           Congress could not have

intended such a result.        Cf. 

–20 ("There

is no reason to think that the grandfathering provision was meant

to give a second bite at the apple to one who earlier had a full

and fair opportunity to prove the marriage was bona fide.").


intentional. See Lohnes v. Level 3 Commc'ns, Inc., 

, 61
(1st Cir. 2001) ("[T]he maxim expressio unius est exclusio alterius
instructs that, 'when parties list specific items in a document,
any   item   not   so   listed   is   typically   thought   to   be
excluded.'")(citation omitted).

                                     -10-
Indeed, this reading would undermine the government's ability to

use conditional resident status as a tool to root out unlawful

immigration based on sham marriages.    See Choin v. Mukasey, 

, 1120 (9th Cir. 2008) ("Congress . . . created the

conditional permanent resident status to enable the government to

gather two years of evidence about a marriage before granting full

permanent resident status.")

          Because Castro-Soto married his first wife less than two

years before she filed her I-130 petition on his behalf, this

petition provided him a basis to obtain only conditional lawful

permanent resident status and, at most, the later opportunity as

well as the obligation to seek the removal of those conditions.

See 8 U.S.C. § 1186a(c), (d).     Castro-Soto fully exercised his

right to petition to have his conditions removed. As mentioned, he

and his first wife filed a joint petition to have the conditions on

his lawful permanent resident status removed, but the agency

questioned the bona fides of the marriage and denied that petition.

After he and his first wife divorced, Castro-Soto filed a waiver

application for a good faith marriage ending in divorce which, if

granted, would have removed the conditions on his lawful permanent

resident status.    The BIA affirmed the denial of that waiver

application, however, and Castro-Soto never petitioned for review

of that decision.




                                -11-
                               III.

          We affirm the BIA's determination that the 1992 petition

was extinguished for grandfathering purposes, at the latest, by the

time Castro-Soto's conditional lawful permanent residency expired

and he became removable.



Petition denied.




                               -12-