25 I. & N. Dec. 717
BIA2012Background
- Svetislav ILIC, a Serbian native, is the respondent in removal proceedings seeking adjustment of status under INA §245(i) as a derivative grandfathered alien.
- His wife, the principal beneficiary, was the recipient of an approved I-130 filed December 1, 1999 by her sister.
- The respondent entered the United States on August 15, 2005, without inspection, and has an approved I-140 petition with a priority date of April 22, 2004.
- The Immigration Judge previously granted adjustment of status under §245(i) based on the wife’s petition, while DHS appeals.
- The Board remands for factual determination on whether the wife met the physical presence requirement on December 21, 2000, which is necessary to grandfather the respondent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the respondent can independently qualify for §245(i) as derivative if the principal does not meet presence | Ilic argues he remains derivative and need not show presence | DHS contends he becomes principal and must meet presence | Remand to resolve whether wife was present on Dec 21, 2000 |
Key Cases Cited
- Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010) (supports Yates Memo interpretation of §245(i) eligibility)
- Matter of Naulu, 19 I&N Dec. 351 (BIA 1986) (derivative's eligibility depends on principal's status)
- Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007) (notes that denial of a petition that was proper when filed does not preclude §245(i) relief on another basis)
- Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (discusses congressional intent and eligibility for §245(i))