Mushtaq Imran AHMAD-MUSHTAQ, a.k.a. Imran Mushja Moshtaq Ahmad, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 378 F. App'x 3

SUMMARY ORDER Petitioner Mushtaq Imran Ahmad-Mushtaq (“Ahmad”), a native and citizen of Pakistan, seeks review of a July 22, 2008 order of the BIA adopting and affirming an August 31, 2006 decision of Immigration Judge (“IJ”) Michael W. Straus. The IJ had found Ahmad removable as charged and also denied Ahmad’s application for adjustment of status after concluding, based on the BIA’s decision in In re Perez Vargas, 23 I. & N. Dec. 829 (BIA 2005), that he lacked jurisdiction to determine whether Ahmad’s approved employment-based visa petition remained valid under

section 204(

j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j), following a change in Ahmad’s employer sponsor. See In re Mushtaq Imran Ahmad-Mushtaq a.k.a. Imran Mushja Moshtaq Ahmad, No. [ AXX XXX XXX ] (B.I.A. July 22, 2008), aff'g No. [ AXX XXX XXX ] (Immig.CtHartford, CT, Aug. 31, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. The Government requests that we remand this case to the BIA in light of the Board’s recent decision in In re Marcal Neto, 25 I. & N. Dec. 169 (BIA 2010), which overruled the Board’s precedent in Vargas.

As noted, both the IJ and BIA in this case relied on Vargas in concluding that the IJ lacked jurisdiction to determine whether Ahmad’s new job was “in the same or a similar occupational classification as the job for which [his adjustment of status] petition was filed,” 8 U.S.C. § 1154(j), and therefore whether his employment-based visa petition remained valid. As a result, they considered themselves powerless to offer Ahmad the relief he sought.

In Neto, by contrast, after reviewing decisions of the Fourth, Fifth, and Sixth Circuits rejecting the reasoning of Vargas, the Board concluded that IJs do in fact possess jurisdiction to make the relevant determinations under

section 1154(j). See 25 I. & N. Dec. at 171-76 (noting decisions in Sung v. Keisler, 505 F.3d 372 (5th Cir.2007); Matovski v. Gonzales, 492 F.3d 722 (6th Cir.2007); Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir.2007)). Under these circumstances, we agree that remand to the Board for further proceedings is appropriate. See NLRB v.

Food Store Employees Union, 417 U.S. 1, 10 n. 10, 94 S.Ct. 2074, 40 L.Ed.2d 612 (1974) (“[A] court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act.”); see also Xiu Fen Xia v. Mukasey, 510 F.3d 162, 167-68 (2d Cir.2007) (discussing when remand under Food Store Employees is proper).

Accordingly, the Government’s motion to remand to the BIA is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED to the BIA. Ahmad’s petition for review and motion for stay of deportation are DISMISSED as moot.