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  • Article: Unpublished BIA Decision of the Month (March 2014) By Ben Winograd

    Unpublished BIA Decision of the Month (March 2014)

    by


    Our featured unpublished BIA decision for March 2014 involves a deceptively complicated issue for noncitizens filing employment-based adjustment applications: whether an applicant has maintained “lawful status” for purposes of Sections 245(c) and 245(k) of the Immigration and Nationality Act (INA). While often straightforward, such determinations can become complicated for noncitizens who submitted applications to or change or extend nonimmigrant status that were not adjudicated before their period of authorized stay expired.

    The respondents in Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014), were admitted on tourist visas in May 2005 with authorization to stay for six months. Before their visas expired, they filed an application to extend their status for an additional six months. According to USCIS, the respondents were sent approval notices in January 2006 extending their status until May 2006. Accordingly, when the respondents filed employment-based adjustment applications in June 2007, the agency denied the applications on grounds they failed to maintain lawful status for more than 180 days.

    After being placed in removal proceedings, the respondents argued that they never received any notice that their extension requests had been approved. To the contrary, they submitted evidence from the USCIS website indicating that their request was still pending when they filed their adjustment applications. The respondents contended that the approval notice was not sent until March 2009—nearly three years after their extension expired—and that they should be regarded as having maintained “lawful status” for the entire preceding period. While acknowledging the respondents were not to blame, the immigration judge agreed with the government that they fell out of status in May 2006, more than a year before filing their adjustment applications, and ordered their removal.

    In reversing the immigration judge, the Board noted that the record contained no evidence of the approval notice that the DHS claimed was sent in January 2006. Even though the notice that was ultimately sent in 2009 only approved the respondents’ applications until May 2006, the Board agreed that the respondents maintained “lawful status” for the entire preceding period. As evidence, the Board cited a USCIS Memo stating then when an application for an extension or change of status is “ultimately approved, the period during which the [extension request] had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status.” The Board then remanded the record for further consideration of the respondents’ adjustment applications.

     _______________________________________

    About this series. Each month, IRAC features one unpublished BIA decision selected for its potential to assist noncitizens in removal proceedings. To share an unpublished BIA decision, please email Ben Winograd. For a guide to IRAC’s larger collection, see our Index of Unpublished BIA Decisions.

    Citation: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)
    Panel: Anne Greer, Roger Pauley, Patricia Cole
    Respondent’s attorney: Michael DiRaimondo of Melville, NY

    This article was originally published on http://www.irac.net/updates/unpublished-bia-decision-month-march-2014/. Reprinted with permission.


    About The Author

    Ben Winograd

    Ben Winograd is an attorney at the Immigrant & Refugee Appellate Center. He manages IRAC's unpublished BIA decisions project and is the author of the Index of Selected Unpublished Decisions of the Board of Immigration Appeals. He also maintains IRAC's Twitter feed (@AppellateCenter), which provides links to published and unpublished decisions from the Board of Immigration Appeals and federal circuit courts. Ben received his J.D. cum laude from Georgetown Law in 2010, where he was an editor of the Georgetown Immigration Law Journal. He previously worked at the American Immigration Council, where he argued as amicus curiae in Hanif v. Att'y Gen., 694 F.3d 479 (3d Cir. 2012) and Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012) (overruling Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010)).


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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