Tovar v. U.S. Attorney General
646 F.3d 1300
| 11th Cir. | 2011Background
- Medina Tovar, a Mexican citizen, was admitted to the United States on a V-2 visa in 2002 and last re-entered in 2004.
- In January 2005 Medina was served with a Notice to Appear in removal proceedings and sought adjustment of status under 8 U.S.C. § 1255, claiming CSPA child status.
- Visa number becoming available occurred in August 2004; Medina’s I-485 was not filed until October 2007.
- Medina’s father interacted with the National Visa Center regarding processing; NVC sent multiple letters about visa availability and processing without Medina’s direct timely action.
- The IJ and BIA held Medina did not ‘sought to acquire’ permanent residence within one year of visa availability, and thus did not retain child status under the CSPA; post-order voluntary departure was denied because Medina failed to meet the one-year presence requirement before the NTA.
- The Eleventh Circuit reviews the BIA/ IJ decisions de novo on legal issues and upheld the BIA’s determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of 'sought to acquire' under CSPA | Medina argues broad interpretation includes substantial steps toward filing. | U.S. argues no sufficient steps were taken within one year of visa availability. | Broad interpretation adopted, but Medina’s actions did not constitute substantial steps to file. |
| Whether Medina maintained child status under CSPA | Medina maintains child status due to broad 'sought to acquire' reading. | Medina aged out because he did not timely file or pursue filing within one year. | Medina did not seek to acquire within one year; child status not maintained. |
| Post-order voluntary departure eligibility | Discretionary relief should be interpreted liberally; no ambiguity in statute. | Presence requirement is clear and Medina lacked one year continuous presence before NTA. | BIA correctly denied post-order voluntary departure due to lack of one-year presence. |
Key Cases Cited
- Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (standard of review for BIA/ IJ decisions; de novo legal review with deference to BIA on law)
- Negusie v. Holder, 555 U.S. 511 (2009) (immigration law interpretation and deference framework)
- Farquharson v. U.S. Att'y Gen., 246 F.3d 1317 (11th Cir. 2001) (deference to BIA interpretation when reasonable)