Diomares De Jesus CARABALLO-TAVERA, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Docket No. 11-2517-ag.
United States Court of Appeals, Second Circuit.
Submitted On: June 15, 2012. Decided: June 18, 2012.
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Before: CALABRESI, CABRANES, and LOHIER, Circuit Judges.
PER CURIAM:
Diomares De Jesus Caraballo-Tavera (“Caraballo-Tavera“), a native and citizen of the Dominican Republic, petitions for review of a June 6, 2011 decision of the Board of Immigration Appeals (“BIA“), affirming the June 18, 2009 decision of an Immigration Judge (“IJ“) that denied his application for adjustment of status and ordered him removed. In re Caraballo-Tavera, No. A073 616 278 (B.I.A. June 6, 2011), aff‘g No. A073 616 278 (Immig.Ct.Hartford, CT June 18, 2009). We recount only such facts as are necessary to explain our decision.
Where, as here, “the BIA does not expressly ‘adopt’ the IJ‘s decision, but ‘its brief opinion closely tracks the IJ‘s reasoning,‘” we “consider both the IJ‘s and the BIA‘s opinions ‘for the sake of completeness.‘” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006)). We review the BIA‘s legal conclusions de novo, “with the caveat that the BIA‘s interpretations of ambiguous provisions of the [Immigration and Nationality Act] are owed substantial deference unless ‘arbitrary, capricious, or manifestly contrary to the statute.‘” Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
I. Relevant Statutory Provisions
Under the Immigration and Nationality Act (“INA“), “[t]he term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.”
Certain classes of aliens are expressly barred from adjusting their status under
The Attorney General may not adjust, under [
8 U.S.C. § 1255(a) ], the status of a nonimmigrant alien described in [8 U.S.C. § 1101(a)(15)(K) ] except to that of an alien lawfully admitted to the United States on a conditional basis under [8 U.S.C. § 1186 ] as a result of the marriage of the nonimmigrant ... to the citizen who filed the [K-1 visa petition].
As the language of the statute makes clear, K-1 visa holders can first adjust only to conditional lawful permanent resident (“CLPR“) status.
II. Caraballo-Tavera‘s Eligibility for Adjustment of Status
A. Facts
Caraballo-Tavera complied with the statutory framework described above. In July 1998, he entered the United States on a K-1 visa as the fiancé of Nilsa Debora
Caraballo-Tavera argued during the removal proceedings, as he does on appeal, that he is eligible to adjust to LPR status under
B. Analysis
At the outset, we note that the BIA and several of our sister circuits have interpreted the language of
Caraballo-Tavera does not contest that § 1255(d) bars a “nonimmigrant alien described in [
The Ninth Circuit confronted a similar claim in Kalal v. Gonzales, 402 F.3d 948 (9th Cir.2005), in which a petitioner who did not marry her K-1 visa sponsor was granted CLPR status in error. The Ninth Circuit held that “[o]nce [Kalal‘s] improperly granted CLPR status was rescinded, Kalal was in the position of a K-1 visa holder who neither married her fiancé within 90 days of entry, nor departed. In short, she was removable.” Id. at 951. The court concluded that Kalal was obligated to comply with the “specific restrictive process for holders of that kind of visa,” and that § 1255(d) precluded Kalal from adjusting her status to LPR on any basis other than her marriage to the original K-1 visa sponsor. Id. at 951-52.
Unlike the petitioner in Kalal, Caraballo-Tavera complied with the initial statutory requirements by marrying his fiancée within 90 days of his arrival in the United States and adjusting to CLPR status on the basis of his marriage. But in the end, both petitioners lost their CLPR status because they failed to fully comply with the K-1 visa requirements—Kalal because she failed to marry her K-1 visa sponsor, and Caraballo-Tavera because he failed to prove the bona fides of his marriage. Be
It is clear from the statutory scheme set forth above that Congress has devised “a specific restrictive process” for K-1 visa holders. Id. at 952. As an “out of status” K-1 visa admittee who has failed to follow the required statutory process, Caraballo-Tavera remains subject to the restrictions in § 1255(d). He is therefore ineligible to adjust his status to LPR on any basis other than marriage to his K-1 visa sponsor. See, e.g., Choin, 537 F.3d at 1119 n. 4 (“There is no question that the plain language of [§ 1255(d)] bars K visaholders from adjusting to permanent resident status on any basis other than the marriage to the citizen who petitioned on their behalf.“). Accordingly, we conclude that Caraballo-Tavera‘s application for adjustment of status under
This conclusion is in accord with
The BIA‘s decision in Matter of Stockwell, 20 I. & N. Dec. 309 (BIA 1991), is not to the contrary. In that case, the BIA concluded that § 1255(d) did not prohibit an alien whose CLPR status had been terminated from adjusting his status to that of LPR. Id. at 311-12. Caraballo-Tavera argues that § 1255(d), as interpreted by the BIA in Matter of Stockwell, should not bar him from adjusting his status on the basis of his daughter‘s approved immigrant visa petition merely because his CLPR status has been terminated. Two key distinctions undermine his reliance on the holding of Matter of Stockwell.
First, as the BIA noted, the alien in Matter of Stockwell entered the United States as a “visitor for pleasure” rather than a K-1 visa holder. Second, and more importantly, Matter of Stockwell was predicated on the interpretation of
CONCLUSION
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.