Bia Holds That In Determining Whether A Respondent Is Grandfathered For Purposes Of Adjustment Of Status Under INA §245(i), A Decision By USCIS To Approve A Visa Petition Filed On Or Before April 30, 2001, Does Not Foreclose An Immigration Judge From Determining In Removal Proceedings Whether That Petition Was “Approvable When Filed” Within The Meaning Of 8 C.F.R. §1245.10(a)(1)(i).
On December 1, 2022, the Board of Immigration Appeals (BIA or Board) once again dismissed an appeal by Respondent, who contested the denial of his adjustment of status application by an Immigration Judge (IJ), who also denied Respondent’s cancellation of removal request under INA §240A(b)(1).
Respondent was married in 1989. Over 8 years later, his wife’s lawful permanent resident (LPR) father filed an I-130 visa petition on her behalf “wrongly claiming that she was an unmarried daughter of a lawful permanent resident.” The petition was approved by the former INS. The decision pointedly noted that there is no visa category for the married daughter of an LPR.
In proceedings, Respondent applied for both cancellation and adjustment, the latter pursuant to INA §245(i), under the theory that he was grandfathered by his wife’s approved petition. The IJ denied both applications and Respondent appealed. The BIA held that, to be grandfathered via his wife’s I-130, Respondent had to show the petition was properly filed on or before April 30, 2001 and was “approvable when filed” per 8 C.F.R. §1245.10(a)(1)(i)(A). Because Respondent’s wife was married when the visa petition was filed, she “did not qualify for the visa preference category requested when the petition was filed”; the Board found the I-130 was therefore not “approvable when filed” and affirmed the IJ’s adjustment denial.
Respondent then filed a petition for review with the Eleventh Circuit, which granted the Government’s motion to remand so the BIA could reconsider the circumstances of when a visa petition was not “approvable when filed”, despite the fact that it had, in fact, been approved. The motion specifically noted that prior Board precedent and the governing regulations were “silent about situations in which the grandfathering petition was approved and not later revoked.” This opinion was written to address that gap in jurisprudence.
In beginning its analysis, the BIA stated that the issue here was whether an approved visa petition for which the beneficiary was not substantively eligible at the time of filing is “approvable when filed” under 8 C.F.R. §1245.10, such that it qualifies as a grandfathered petition for purposes of adjustment of status per INA §245(i). This issue was reviewed de novo.
Setting forth the legal background, the opinion explained that adjustment of status is generally limited to those who have been inspected and admitted or paroled into the U.S. but that, in 1994, Congress enacted §245(i), which permits the government to grant adjustment upon payment of a penalty fee to those who entered the U.S. without inspection or failed to maintain lawful immigration status. Originally, §245(i) was scheduled to “sunset” on October 1, 1997, but Congress enacted a “grandfather clause,” which allowed certain noncitizens to continue to use the provision – if the applicant was the beneficiary (including a spouse or child of the I-130 beneficiary) if a visa petition or labor certification was properly filed on or before April 30, 2001 and was “approvable when filed.”
The BIA went on to state that the Eleventh Circuit had remanded the record for the Board to interpret the phrase “approvable when filed” and “determine whether a visa that has been approved is necessarily ‘approvable when filed.’ Respondent had conceded the phrase is ambiguous and the decision noted that neither the INA section or the regulations governing when a petition is considered approvable when filed address situations where the grandfathering petition “was mistakenly approved and not revoked, as is the case here.”
The opinion next explained that the regulations define “approvable when filed” partly as a “qualifying petition” that is “properly filed, meritorious in fact, and non-frivolous (‘frivolous’ being defined herein as patently without substance).” The BIA concluded that a petition that is not “meritorious in fact” at the time of filing will not be considered “approvable when filed”, even if the petition was, in fact, approved and never revoked.
Respondent had cited Department of Justice guidance from 2001 to contend that if a petition is approved at the time an applicant files for adjustment of status, unless the petition is later revoked, it was “approvable when filed” under §245(i); yet, the BIA found that this guidance also stated that “a visa petition is not approvable when filed if it is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa.” Here, Respondent did not argue that when the petition was filed, he was not married tohis wife. She therefore did not have “the appropriate family relationship” as the unmarried child of an LPR that would have supported the issuance of the visa. Rather, Respondent only contended that the petition was approved “despite the former INS having no knowledge of her marriage.”
Additionally, stated the decision, “meritorious in fact” is not defined in the regulations, but the Board had previously held that a petition was meritorious in fact if it “merited a legal victory upon filing.” Further, concluded the BIA, a petition’s denial is not determinative of whether it was “meritorious in fact” when filed and a denial or revocation does not automatically foreclose a determination that a petition was approvable when filed. A family-based petition could be denied because of insufficient evidence, while a subsequently-filed petition with additional documentation could be approved; the inverse is also true.
Accordingly, held the Board, a USCIS decision to approve a petition filed on or before April 30, 2001, does not foreclose an IJ from determining in removal proceedings whether the petition was “approvable when filed” within the meaning of 8 C.F.R. §1245.10(a)(1)(i), where the evidence presented during proceedings reflects that the original beneficiary of the grandathered petition “was substantively ineligible for the visa at the time the petition was filed.” The BIA drew a parallel to its precedent decision Matter of Kagumbas, 28 I&N Dec.400 (BIA 2021), which held that an IJ “retains the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status” under INA §245(a); Kagumbas clarified that an IJ “may assess the validity of a marriage upon which a visa petition is based.”
In the instant matter, in determining whether Respondent had satisfied his burden of proof, the IJ was not limited to “the perfunctory act of acknowledging that the underlying visa petition was previously approved.” Rather, the court may evaluate, based on the record, the validity of the petition’s approval and determine whether it was “approvable when filed.”
As to the law’s application to Respondent’s matter, he and his wife had already married before the petition was filed. She therefore could not meet the substantive requirements of the Second Preference category. As such, the petition did not “merit a legal victory” upon filing and was not “meritorious in fact.” Respondent thus had not proven that the petition on which he sought to base his §245(i) adjustment application was “approvable when filed,” as defined by the regulations. As Respondent’s wife was not, in fact, the unmarried daughter of the petitioner and there is no preference category for a married child of a lawful permanent resident, the IJ’s decision was upheld and the appeal again dismissed. Matter of Triana, 28 I&N Dec. 659 (BIA 2022).
