TRIANA , 28 I. & N. Dec. 659 ( 2022 )

Cite as 28 I&N Dec. 659 (BIA 2022) Interim Decision #4055
Matter of Policarpo TRIANA, Respondent
Decided December 1, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When determining whether a respondent is grandfathered for purposes of adjustment of
status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i)
(2018), a decision of the United States Citizenship and Immigration Services (“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) (2021).
FOR THE RESPONDENT: Michael Christian Urbina-Pabon, Esquire, Kennesaw,
Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew J. Hewitt, Assistant
Chief Counsel
BEFORE: Board Panel: GREER, GOODWIN, and GORMAN, Appellate Immigration
Judges.
GOODWIN, Appellate Immigration Judge:
This case was last before this Board on June 25, 2020, when we dismissed
the respondent’s appeal of the Immigration Judge’s April 18, 2018, decision
denying his applications for adjustment of status under section 245(i) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i) (2018), and
cancellation of removal for certain nonpermanent residents under section
240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1) (2018). This case is presently
before us pursuant to a January 22, 2021, order from the United States Court
of Appeals for the Eleventh Circuit granting the Government’s unopposed
motion to remand. The appeal will again be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The following facts are undisputed. The respondent is a native and citizen
of Mexico. He married his wife in 1989. More than 8 years after the
marriage, his wife’s lawful permanent resident father filed a Form I-130,
Petition for Alien Relative, on her behalf, wrongly claiming that she was an
unmarried daughter of a lawful permanent resident. See INA § 203(a)(2)(B),
8 U.S.C. § 1153(a)(2)(B) (1994). The petition was approved by the former
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Immigration and Naturalization Service (“INS”) 1 on October 29, 1998, and
the respondent’s wife became the beneficiary of an approved second
preference visa petition as an unmarried daughter of a lawful permanent
resident. 2 There is no visa category for a married daughter of a lawful
permanent resident. See INA § 203(a)(3), 8 U.S.C. § 1153(a)(3) (providing
a visa category for married sons and daughters of citizens).
In removal proceedings, the respondent applied for cancellation of
removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1), and
adjustment of status under section 245(i)(1) of the INA, 8 U.S.C.
§ 1255(i)(1), claiming that he was grandfathered through his wife’s approved
petition filed by her father in 1997. The Immigration Judge denied the
respondent’s applications, and the respondent appealed to the Board. We
held that, to be grandfathered based on his wife’s prior visa petition, the
respondent must show that this petition was properly filed with the Attorney
General on or before April 30, 2001, and that it was “approvable when filed.”
8 C.F.R. § 1245.10(a)(1)(i)(A) (2020). Because the respondent’s wife did
not qualify for the visa preference category requested when the petition was
filed, we determined that the petition was not “approvable when filed” and
affirmed the Immigration Judge’s denial of the respondent’s application for
adjustment of status.
The respondent filed a petition for review with the Eleventh Circuit. The
court granted the Government’s motion to remand the case for the Board to
“reconsider the circumstances regarding whether a visa petition was not
‘approvable when filed’ despite the fact that it had actually already been
approved.” The motion to remand noted that prior Board precedent and the
relevant regulation governing whether a petition is approvable when filed
“are silent about situations in which the grandfathering petition was
approved,” and not later revoked. See 8 C.F.R. § 1245.10(a)(3) (defining
“approvable when filed”). We will now address that gap. 3
1
In the Homeland Security Act of 2002, Pub. L. No. 107-296, § 451(b)(1), 116 Stat.
2135, 2196 (codified at 6 U.S.C. § 271(b)(1) (2006)), the authority to adjudicate visa
petitions was transferred from the INS to the United States Citizenship and Immigration
Services.
2
The 1998 visa approval is not in the record of proceedings. We note that the
respondent’s wife adjusted status through a later visa petition filed on her behalf as the
mother of a United States citizen. References throughout this decision to the respondent’s
wife’s visa petition relate to the visa petition filed by her father in 1997 and granted in
1998.
3
The Government’s motion to remand, which the Eleventh Circuit granted, did not ask
us to reconsider the respondent’s application for cancellation of removal, and thus we will
not disturb our prior decision affirming the Immigration Judge’s denial of that application.
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II. ANALYSIS
The issue in this case is whether an approved visa petition for which the
beneficiary was not substantively eligible at the time of filing is “approvable
when filed” within the meaning of 8 C.F.R. § 1245.10, such that it qualifies
as a grandfathered petition for purposes of adjustment of status under section
245(i) of the INA, 8 U.S.C. § 1255(i). We review this legal issue de novo.
8 C.F.R. § 1003.1(d)(3)(ii) (2021).
A. Legal Background
Adjustment of status is generally limited to applicants who have been
“inspected and admitted or paroled into the United States.” INA § 245(a),
8 U.S.C. § 1255(a). However, in 1994, Congress determined that “many
close family members of [] legalized aliens were obliged to leave the United
States so that they could apply for an immigrant visa at a consulate or
embassy abroad, placing a significant administrative burden on the resources
of the State Department and exposing the aliens themselves to considerable
personal expense.” Matter of Briones, 24 I&N Dec. 355, 359 (BIA 2007)
(citing Adjustment of Status to That of Person Admitted for Permanent
Residence; Temporary Removal of Certain Restrictions of Eligibility, 59
Fed. Reg. 51,091, 51,092 (Oct. 7, 1994)). Congress responded by enacting
section 245(i) of the INA, 8 U.S.C. § 1255(i), which permits the Attorney
General to grant adjustment of status upon the payment of a fee to those who
entered the United States without inspection or failed to maintain lawful
status after having been admitted as nonimmigrants. See Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724,
1765–66 (effective Oct. 1, 1994); see also Matter of Briones, 24 I&N Dec.
at 359–60 (discussing the history of section 245(i)).
Although section 245(i) was originally scheduled to sunset on October 1,
1997, Congress “enacted a grandfather clause, which allow[ed] certain aliens
to continue to benefit from the provision.” Matter of Rajah, 25 I&N Dec.
127, 133 (BIA 2009). To be grandfathered under this statute, the applicant
must be “the beneficiary (including a spouse or child of the alien beneficiary
if eligible to receive a visa under section 203(d) of the Act) of” a visa petition
or labor certification that was properly filed on or before April 30, 2001, and
was “approvable when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(A), (B); see also
Matter of Rajah, 25 I&N Dec. at 133. When those statutory requirements
are satisfied, an applicant may apply to adjust his or her status to that of a
lawful permanent resident. See INA § 245(i)(1), 8 U.S.C. § 1255(i)(1).
Derivative beneficiaries of the principal beneficiary may also be
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grandfathered into the provision if a spouse or child relationship existed with
the principal beneficiary on or before April 30, 2001. Matter of Estrada and
Estrada, 26 I&N Dec. 180, 184–85 (BIA 2013).
B. Defining “Approvable When Filed”
The Eleventh Circuit remanded the record to us to interpret the phrase
“approvable when filed” and determine whether a visa that has been
approved is necessarily “approvable when filed.” On remand, the respondent
concedes that the phrase “approvable when filed” is ambiguous. See Linares
Huarcaya v. Mukasey, 550 F.3d 224, 229 (2d Cir. 2008) (per curiam) (“It is
clear that ‘approvable when filed’ is ambiguous . . . .”). Neither section
245(i) nor 8 C.F.R. § 1245.10(a)(3), which governs whether a petition is
approvable when filed, addresses situations where the grandfathering
petition was mistakenly approved and not revoked, as is the case here. We
must therefore develop a reasonable interpretation of this regulation. See
Nat’l Cable & Telcomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
980 (2005) (“[A]mbiguities in statutes within an agency’s jurisdiction to
administer are delegations of authority to the agency to fill the statutory gap
in reasonable fashion.”).
The respondent argues that, because his wife’s visa petition was
approved, it was necessarily “approvable when filed.” The regulation
defines “approvable when filed” to mean, in relevant part,
as of the date of the filing of the qualifying immigrant visa petition under section 204
of the Act . . . the qualifying petition . . . was properly filed, meritorious in fact, and
non-frivolous (“frivolous” being defined herein as patently without substance). This
determination will be made based on the circumstances that existed at the time the
qualifying petition or application was filed. A visa petition that was properly filed
on or before April 30, 2001, and was approvable when filed, but was later withdrawn,
denied, or revoked due to circumstances that have arisen after the time of filing, will
preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible
to file an application for adjustment of status under section 245(i) of the Act.
8 C.F.R. § 1245.10(a)(3) (emphasis added). We conclude that a visa petition
that is not “meritorious in fact” at the time of filing will not be considered
“approvable when filed,” even if the visa petition was, in fact, approved and
never revoked.
The respondent cites to guidance from the Department of Justice issued
in 2001 to argue that if a visa petition is approved at the time that the
respondent files an application for adjustment of status, unless the petition is
later revoked, the petition is approvable when filed for the purposes of
section 245(i). See Adjustment of Status To That Person Admitted for
Permanent Residence; Temporary Removal of Certain Restrictions of
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Eligibility, 66 Fed. Reg. 16,383, 16,385 (Mar. 26, 2001). However, this
guidance also states 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.” Id. In this case, the respondent
does not contest that when the visa petition was filed, he was married to his
wife, and therefore his wife did not have “the appropriate family
relationship” as an unmarried daughter of a lawful permanent resident “that
would support the issuance of” the visa. Id. Instead, he argues only that the
visa petition was approved despite the former INS having no knowledge of
her marriage.
While “meritorious in fact” is not defined by the regulations, we have
held that a visa petition is meritorious in fact if it “‘merited a legal victory’
upon filing.” Matter of Butt, 26 I&N Dec. 108, 115 (BIA 2013) (citing
Ogundipe v. Mukasey, 541 F.3d 257, 260 (4th Cir. 2008)); see also
Tomay-Hart v. U.S. Att’y Gen., 791 F. App’x 857, 861 (11th Cir. 2019) (“A
visa petition is meritorious in fact if it ‘merited legal victory’ on the day it
was filed, ‘notwithstanding . . . subsequent events.’” (quoting Matter of Butt,
26 I&N Dec. at 115)). For example, when considering whether an applicant
is eligible for adjustment of status under section 245(i) based on an
immediate relative visa petition filed by a spouse, the nature of the marriage
underlying the visa petition should be considered. See Matter of Jara Riero
and Jara Espinol, 24 I&N Dec. 267, 268–69 (BIA 2007). In such a case,
“meritorious in fact” requires the underlying marriage be “bona fide at its
inception” for purposes of grandfathering. Id. at 270. Similarly, “a labor
certification is ‘meritorious in fact’ if it was ‘properly filed’ and ‘non-
frivolous,’ so long as a bona fide employer/employee relationship exists
where the employer has the apparent ability to hire the sponsored alien and
where there is no evidence that the labor certification is based on fraud.”
Matter of Butt, 26 I&N Dec. at 116.
The denial of a visa petition is “not determinative of whether the visa
petition was meritorious in fact” when filed, and that denial or revocation
does not automatically foreclose a determination that a visa petition was
approvable when filed. Matter of Jara Riero and Jara Espinol, 24 I&N Dec.
at 269; see also Matter of Butt, 26 I&N Dec. at 115 (holding that denial,
withdrawal, or revocation of a visa petition does not determine whether the
petition was approvable when filed). 4 A family-based visa petition could be
4
The USCIS Policy Manual also provides that approval or denial of a qualifying
immigrant visa petition or labor certification application is not determinative of whether a
petition is approvable when filed. See 7 USCIS Policy Manual, pt. C, chp. 2 (updated
Oct. 19, 2022), https://www.uscis.gov/policy-manual/volume-7-part-c-chapter-
2#footnotelink-14. For an immigrant visa petition to be “meritorious in fact” at the time
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denied as a consequence of insufficient evidence while a subsequent petition
based on additional evidence could be approved. Similarly, the inverse is
true. Accordingly, the decision of the United States Citizenship and
Immigration Services (“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), where the evidence
presented during removal proceedings reflects that the original beneficiary
of the grandfathered petition was substantively ineligible for the visa at the
time the petition was filed. See Matter of Aurelio, 19 I&N Dec. 458, 460
(BIA 1987) (“The proceedings in which visa petitions are adjudicated are
separate and apart from [removal] proceedings.”).
We draw a parallel to our decision in Matter of Kagumbas, 28 I&N Dec.
400, 405 (BIA 2021), where we held that an Immigration Judge retains the
authority to inquire into the bona fides of a marriage when considering an
application for adjustment of status under section 245(a) of the INA.
Although that case did not address the ambiguity of a specific regulatory
provision, it clarified that Immigration Judges may assess the validity of a
marriage upon which a visa petition is based. Id. at 404–05. We premised
this conclusion on the fact that the respondent has the burden of proving that
he is eligible for adjustment of status, and an “Immigration Judge’s
assessment of whether the respondent has met his [or her] burden of proof
does not become merely a ministerial act simply because there is an approved
I-130 visa petition.” Id. at 404. Similarly, in this case, to determine whether
the respondent has satisfied his burden of proof, the Immigration Judge is not
limited to the perfunctory act of acknowledging that the underlying visa
petition was previously approved. Instead, the Immigration Judge may
evaluate, based on the record, the validity of the petition’s approval and
determine whether it was “approvable when filed.”
C. Application to the Respondent’s Case
The visa classification for which the respondent’s father-in-law
petitioned required the respondent’s wife to be an unmarried daughter of a
lawful permanent resident. See section 203(a)(2)(B) of the INA, 8 U.S.C.
1153(a)(2)(B). However, the respondent and his wife were already married
at the time the petition was filed, and thus she did not meet the substantive
eligibility requirements for this immigrant category. Given the evidence
of filing, the beneficiary must satisfy “all the substantive eligibility requirements at the
time of filing for the specified immigrant category.” Id. While the internal USCIS policy
is not binding on this Board, it is persuasive. See Matter of Tijam, 22 I&N Dec. 408,
415–16 (BIA 1998).
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presented in this case, the petition did not “merit a legal victory” upon filing
and was not “meritorious in fact.” As a consequence, the respondent has not
shown that the visa petition on which he seeks to base his 245(i) adjustment
of status application was “approvable when filed” within the meaning of
8 C.F.R. § 1245.10(a)(3).
The respondent argues that the “approvable when filed” requirement
exists to allow respondents to adjust status based on unapproved petitions
despite the fact that the merits were not adjudicated by USCIS or
circumstances changed so as to render the petition not approvable. However,
in this case, the circumstances underlying his wife’s visa petition did not
change over time. Instead, the information provided on the petition was
wrong when it was filed. She was not, in fact, the unmarried daughter of the
petitioner, and, as stated earlier, there is no visa category available for a
married daughter of a lawful permanent resident. 5
Therefore, we will uphold the Immigration Judge’s decision denying the
respondent’s application for adjustment of status. Accordingly, the
respondent’s appeal is again dismissed.
ORDER: The appeal is dismissed.
5
It is also notable that the respondent is essentially seeking treatment as a derivative
beneficiary, specifically his wife’s spouse, on a petition that indicated that she was
unmarried.
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