25 I. & N. Dec. 541
BIA2011Background
- Respondent LE, born March 24, 1985, in Vietnam, accompanied his mother who received a K-1 visa and a K-2 derivative status in 2004; they were admitted to the U.S. on December 27, 2004 when LE was 19.
- LE’s mother married a U.S. citizen fiancé in February 2005, after admission; LE and his mother separately applied to adjust status; the mother’s adjustment was granted, LE’s was denied because he was not a stepchild under the relevant provision.
- LE challenged the denial in removal proceedings; the Immigration Judge denied LE’s renewal, concluding he could no longer be a “child” at adjudication since he had turned 21.
- Board panel discusses whether a K-2 derivative child may adjust based on the timing of admission and whether the applicant must satisfy eligibility at admission rather than at adjudication.
- Board rejects the focus on age at adjudication; holds that a K-2 derivative child must satisfy visa eligibility and availability at the time of admission, and that “minor child” means an unmarried person under 21, leading to remand for LE to renew his adjustment under 245(a) and (d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a K-2 derivative child must be under 21 at admission to adjust. | LE contends age at adjudication governs eligibility. | DHS argues age at admission is controlling for visa eligibility. | Under 245(a), age at admission controls; derivative child must be under 21 at admission. |
| What constitutes a 'minor child' for a K-2 derivative child. | LE argues 'minor child' is equivalent to under 21. | DHS adheres to longstanding practice treating 'minor child' as synonymous with 101(b)(1) child. | A 'minor child' is an unmarried person under 21. |
| When visa eligibility and availability must be established for adjustment. | LE should be eligible at the time of adjudication. | DHS asserts eligibility must be met at or around admission consistent with Sesay. | Visa eligibility and availability are established at the time of admission. |
Key Cases Cited
- Matter of Sesay, 25 I&N Dec. 431 (BIA 2011) (establishes visa eligibility/availability at admission for fiancé(e) derivatives)
- Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010) (defines 'minor child' as under 21; discusses timing for eligibility)
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (S. Ct. 2005) (deference to agency interpretations; statutory meaning carried forward)