ESTRADA
26 I. & N. Dec. 180
BIA2013Background
- Husband and wife from the Philippines; wife entered as B-2 in 1996, husband as B-1 in 1999; both remained in the U.S. beyond authorized stays. Married October 29, 2007.
- Wife was beneficiary of an I-140 filed April 9, 2001 (withdrawn Feb 2002) and later an approved I-140 filed June 12, 2006.
- Husband was beneficiary of an I-130 filed November 1, 2000 by a former wife (appears to qualify as a principal grandfathered alien).
- Respondents sought adjustment of status under INA § 245(i) based on the wife’s petitions and the husband’s 2000 I-130.
- IJ found respondents removable and denied § 245(i) adjustment; BIA reviewed whether the wife is a "grandfathered alien" under 8 C.F.R. § 1245.10(a)(1)(i).
Issues
| Issue | Respondents' Argument | DHS's Argument | Held |
|---|---|---|---|
| Was the April 9, 2001 I-140 "approvable when filed" so the wife is a principal grandfathered alien? | The petition was properly filed and should be treated as approvable when filed. | The petition was not meritorious when filed and thus not approvable. | Petition was not approvable when filed; wife is not grandfathered on that basis. |
| Can the wife be a derivative grandfathered alien based on husband’s Nov. 1, 2000 I-130 when the couple married in 2007? | Marriage to a principal grandfathered alien makes her derivative-grandfathered. | After-acquired spouses (married after Apr. 30, 2001) are not grandfathered. | After-acquired spouse does not qualify as a derivative grandfathered alien. |
| Can after-acquired spouses/children be treated as "considered grandfathered" and independently apply under § 245(i)? | "Considered to be grandfathered" allows independent § 245(i) claims. | That phrase permits dependent adjustment only when accompanying/following a grandfathered principal, not independent principal status. | After-acquired dependents are not independently grandfathered; they may adjust only as dependents accompanying/following a grandfathered principal applicant. |
| Does allowing after-acquired relatives to obtain grandfathered status nullify the filing cutoff (Apr. 30, 2001)? | Allowing such conferral would not undermine the cutoff. | Allowing it would nullify the statutory cutoff and conflict with the LIFE Act amendments. | Court adopts DHS/USCIS interpretation: conferring grandfathered status to after-acquired relatives would nullify the cutoff and is not permitted. |
Key Cases Cited
- Landin-Molina v. Holder, 580 F.3d 913 (9th Cir. 2009) (after-acquired spouse did not acquire derivative grandfathered status; allowing it would nullify the filing cutoff)
- Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. 2008) (April 30, 2001 sunset is a fixed deadline; § 245(i) is a statute of repose)
- Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008) (section 245(i) protections were intended for petitions filed before the statutory cutoff; courts should not allow a ‘‘second bite’’)