Ginocchio v. Mukasey

MEMORANDUM ^**

Anita Docena Ginocchio (“Ginocchio”) petitions for review of a decision by the Board of Immigration Appeals (“BIA”) that denied her application for adjustment of status and ordered her removed. The parties are familiar with the facts of the case and we repeat them here only to the extent necessary to explain our decision. We have jurisdiction under 8 U.S.C. § 1252, and we grant Ginocchio’s petition for review.

In Choin v. Mukasey, 537 F.3d 1116 (9th Cir.2008), we addressed the proper interpretation of § 245(d) of the Immigration and Naturalization Act (“INA”). We held that INA § 245(d) does not make K visa-holders automatically ineligible to adjust to conditional permanent resident status if they get divorced before their application for adjustment of status is adjudicated. We apply that holding here. Like the petitioner in Choin, Ginocchio married the person who filed the K visa petition on her behalf (her fiancé), and applied for adjustment of status based on that marriage. Thus, the BIA erred in concluding that Ginocchio’s divorce made her ineligible for adjustment of status. We GRANT Ginocchio’s petition and REMAND to the BIA for further proceedings consistent with this disposition.

PETITION GRANTED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provide d by 9th Cir. R. 36-3.