O. VAZQUEZ
25 I. & N. Dec. 817
| BIA | 2012Background
- Respondent is a Mexican citizen derivative beneficiary of his parent's I-130 approved in 1996.
- Visa became available on March 1, 2004; respondent first filed I-485 on October 14, 2005.
- Initial USCIS denial due to undisclosed criminal conviction; later denied again as respondent aged out under CSPA.
- USCIS concluded respondent did not seek to acquire LPR status within one year of visa availability, disqualifying CSPA relief.
- Immigration Judge denied adjustment, concluding respondent did not timely file and that father sought legal advice but did not file.
- Board affirmed dismissal, holding respondent failed to satisfy the “sought to acquire” requirement under 203(h)(1)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of sought to acquire under 203(h)(1)(A) | Lovo contends broad interpretation possible; seeks to satisfy by steps short of filing. | DHS argues ambiguity requires reasonable interpretation; filing or equivalent steps may suffice. | Ambiguity acknowledged; interpretation requires reasonable, flexible approach. |
| Whether filing is required to satisfy sought to acquire | Respondent argues other actions (e.g., substantive steps) can satisfy the clause. | Board holds proper filing within DHS processes is the clearest way to satisfy. | Filing an adjustment application satisfies sought to acquire; other actions may also suffice under certain shows. |
| Extraordinary circumstances as alternative satisfies | Respondent could show extraordinary circumstances beyond control caused late filing. | Agency error or other extraordinary circumstances could excuse late filing if proven. | Extraordinary circumstances can satisfy but not where there is mere advisory contact without filing. |
Key Cases Cited
- Robinson v. Shell Oil Co., 519 U.S. 337 (Sup. Ct. 1997) (plain meaning of statute requires contextual interpretation)
- Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (agency interpretations of ambiguous statutes upheld)
- National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (U.S. 2005) (ambiguities resolved by agency expertise in context)
- Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (attorney-related misconduct standards for equitable relief)
- Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006) (extrinsic factors in timely filing and relief considerations)
- Tovar v. U.S. Att’y Gen., 646 F.3d 1300 (11th Cir. 2011) (broad interpretation of sought to acquire not binding in all circuits)