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by Danielle Beach
Jul 15, 2012
BIA Makes Procedural Exception to the One Year, Thus Expanding the Meaning on Child Status Protection Act
In a recent case by BIA, Matter of O. Vazquez, 25 I &N Dec. 817 (BIA 2012) the Board explained the “sought to acquire” provision of section 203(h)(1)(A) of INA, 8U.S.C. § 1153(h)(1)(A) (2006), which is a part of Child Status Protection Act (CSPA), Pub. L. No. 107-208 (Aug.6, 2002). The provision allows an “aged out” applicant to maintain the status of a “child” for the purpose of adjustment of status. However, the “child” status will be preserved only when the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of. . . availability” of an immigrant visa number. An alien can also show that there were other extraordinary, beyond the alien’s control, circumstances that prevented timely filing whereas previously the one year was a bar to eligibility.
The respondent is a 28-year-old native and citizen of Mexico. On September 9, 1996, his father filed I-130 on behalf of respondent’s mother and the I-30 got approved. The immigrant visa number became available on March 1, 2004. Over a year later when the respondent was over 21years of age, he filed I-485 which was denied due to his undisclosed criminal conviction. He sought reopening in2007, but it was denied based on the fact that he "aged out." The respondent was put in removal proceedings. His I-485 filed with Immigration Court was denied, and he was ordered removed to Mexico which he appealed.
The question before the Board I whether the respondent observed the “sought to acquire” provision. First of all, the language at issue is not plain and unambiguous. See Robinson v. Shell Oil Co., 519 U.S. 337,340 (1997). The respondent argues that the meaning of "sought to acquire" is broader than just filing of an application.The Board agrees. However, the Board offers its own interpretation.The section 203(h)(1)(A) provides that an alien would have 1year "age-out protection" from the date of visa availability to qualify. Obviously,proper filing of an application for adjustment meets the provision; The provision may also besatisfied by "substantial steps" that fall short of filing“ within the one year period.
For example, one may present evidence that he or she submitted an application to the DHS, but it was rejected for a procedural or technical reason (absence of a signature). Another exampleis when the attorney paid to assist with filing of the application failed to timely file it.Basically the applicant has to establish through persuasive evidence that an application submitted was rejected for a procedural reason or there were other circumstances that caused the failure to timely file due to circumstances beyond the alien’s control.
Yet, the respondent in the given case barely sought legal advice and did not file his adjustment application within the year while visa was available.Therefore, he did not satisfy the "sought to acquire" requirement and he was not eligible to adjust his status as a derivative beneficiary.
Non-Profit Blames Maryland's Fiscal Problems on Immigrant Children
In a recent article "Anti-Immigration Group Blames Students for Maryland Budget's Gap"written by Walter Ewingand published on www.Immigrationimpact.org web site (one of the American Immigration Council Project), the author sharply criticizes the conclusion made by the Federation for American Immigration Reform (FAIR). FAIR asserts that unauthorized immigrant students or students with unauthorized immigrant parents are the key problem of Maryland’s financial woes. Talk about finding a scapegoat of society’s woes! However, to target parents can only result in negative rebounds on the children of our society.
FAIR is a nonprofit organization of "concerned citizens" who declare that their purpose is to "advocate immigration policies that will best serve American . . . interests. "FAIR explains that according to its calculations unauthorized immigrant students cost Maryland taxpayers $1.3 billion, specifically, K-12 education.They disregard the fact that 69% of those students are US citizens, although the children of illegal immigrant parents. FAIR argues that if not for the illegal immigrant parents, those children would not be in the US; and therefore, they would not be an expense to the US taxpayers.Also, if the parents were deported, the children would likely follow their parents.According to FAIR, these kids are only an "expense" and everybody would be relieved if they leave the country.FAIR seriously grieves that "those U.S.-born children are not deportable like their parents."
FAIR also argues that under "Maryland DREAM Act" the unauthorized immigrant students would be a heavier burden to the budget when they grow up and become eligible for in-state tuition rates at Maryland colleges. In order to solve this problem, FAIR suggests "attrition through enforcement" strategy. That means that under some conditions the illegal immigrants will willfully leave the US taking their children with them. Still, the crucial factor is left out by FAIR’s blunt narrow-mindedness. It is important to recognize that most of those students are the future of the United States.They will soon become American workers, consumers, entrepreneurs and, finally, taxpayers; and it is in the best interest of the US economy to educate these children to allow them contribute to this country’s future when they grow up.
It is clear that the fiscal effect of unauthorized immigrants is not FAIR’s primary worry.FAIR concludes that there is the "the impact on the education of other students if the learning environment is negatively affected by students with limited English language proficiency."FAIR goes on explaining that "social cohesion may be strained by foreign language communications barriers." These comments are applied to all non-English speaking immigrants. This reveals FAIR’s true ideology hidden behind the financial concerns –xenophobia - as the author of the article sums up: "they never met an immigrant they didn’t dislike."
BIA Puts Same-*** Marriage Petitions On Hold
The Board of Immigration Appeals is leaning towards setting a precedent in Immigration law that would eventually allow or prevent immigrants from seeking adjustment of status based on same-*** marriage. Recently, three appeals and a motion to reopen were filed with the BIA on behalf of same-*** married couples that duly registered their relationships under state laws. In all four cases that originated in California, Florida, New York and Pennsylvania, the BIA remanded the record to the relevantDistrict Director and Immigration judge for further proceedings. In the meantime the BIA refused to take a position on the constitutionality of DOMA due to lack of jurisdiction.
The facts of the cases are identical. The petitioners filed the I-130visa petitions onbehalf of the same-*** spouses. Three marriages were concluded in the states that allow *** marriages, and in one instance, the couple got married in Ontario, Canada, and was subsequently granted domestic partnership (2004) and civil union status (2007) in the state of New Jersey.
As it could be expected, the petitions were denied based on the section3 (a) of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2149(1996) (DOMA).District Directors (in denials) and DHS (in the opposition to the motion to reopen) argued that the marriages and one civil union between the petitioners and beneficiaries were not valid relationships for the purposes of Federal law pursuant to the section 3 (a) of DOMA. The petitioners filed a motion to reopen and appeals with the BIA. The BIA agreed and remanded the records for further proceedings ordering the parties to address the following issues:
- Whether the petitioner and the beneficiary have a valid marriage under the state laws; and
- Whether, absent the requirement of section 3 of DOMA, the marriage of the petitioner and the beneficiary would qualify the beneficiary to be considered a “spouse” under the Immigration and Nationality Act.
Clearly, those remands are uncommon. They are an effort by the BIA indicating
responsiveness to the current society demands and changes. Hopefully, they can grow into a landmark decision granting relief to deserving individuals.
About The Author
Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is www.boilapc.com.
