In re L-K-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 30, 2004
23 I&N Dec. 677 (BIA 2004)
Interim Decision #3501
(2) A failure to maintain lawful status is not “for technical reasons” within the meaning of section 245(c)(2) of the Act and the applicable regulations at
FOR RESPONDENT: Olga Floroff, Esquire, Elmhurst, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY:1 Douglas C. Ligor, Assistant Chief Counsel
BEFORE: Board Panel: SCIALABBA, Chairman; OSUNA and PAULEY, Board Members.
SCIALABBA, Chairman:
The Department of Homeland Security (“DHS,” formerly the Immigration and Naturalization Service) has appealed from the Immigration Judge‘s September 27, 2002, decision to grant the respondent2 adjustment of status
The respondent is a native of the Union of Soviet Socialist Republics and a citizen of Ukraine. She initially entered the United States in March 1993 as a nonimmigrant visitor who was authorized to remain until September 25, 1993. On August 27, 1993, she filed an asylum application with the DHS. That asylum application remained pending at the time her nonimmigrant status expired, and the record reflects that she appeared for an interview before an asylum officer on January 28, 1997. After that date, the asylum application was apparently referred to the Immigration Court under
The respondent appeared for her scheduled deportation hearing and resubmitted her application for asylum and withholding of deportation. In a decision dated July 16, 1999, the Immigration Judge denied her application. She appealed from that decision. While her appeal was pending, she received notice that she had been approved to receive a diversity visa through the fiscal year 2002 lottery, and she requested a remand from the Board, which was granted. She submitted an application for adjustment of status to the Immigration Court based on the availability of the diversity visa. In an order dated September 27, 2002, the Immigration Judge granted adjustment over the DHS‘s objection that the respondent did not qualify for that relief because she was not in lawful status. The DHS has appealed from this decision.
I. DHS APPEAL OF THE GRANT OF ADJUSTMENT OF STATUS
We first address whether the Immigration Judge erred in her 2002 decision that the respondent qualified for adjustment of status. Adjustment of status under section 245(a) is generally unavailable to “an alien . . . who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.” Section 245(c)(2) of the Act. It is also unavailable to “any alien . . . who has otherwise violated the terms of a nonimmigrant visa.” Section 245(c)(8) of the Act.
Although some persons precluded from seeking adjustment under section 245(c) of the Act are allowed to apply for adjustment under the additional requirements set forth in section 245(i) of the Act, the applicable regulations extending the dates for section 245(i) availability specifically preclude diversity visa recipients from being considered “grandfathered” aliens on the basis of the
It is undisputed that the respondent was not in “lawful immigration status” after the expiration in September 1993 of her authorized stay pursuant to the nonimmigrant visa.
We agree with the DHS that the respondent is ineligible for adjustment of status because her unlawful immigration status was not “for technical reasons.” The regulations define the term “other than through no fault of his or her own or for technical reasons,” in pertinent part, as “[a] technical violation resulting from inaction of the [DHS] (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the [DHS] has not yet acted on that request).”
The DHS argues that because the example provided refers to a “request to maintain status,” rather than a request for any status, the language of the regulation implies that the request must relate to the particular status the applicant already possesses and wishes to “maintain.” The DHS also contends that when a different status, such as asylum status,6 is requested, any lapse of the initial status is not one “resulting from” the DHS‘s action or inaction with regard to that other status. We do not reach either argument and express no opinion thereon. We point out that both of these arguments carry adverse implications for the ability of aliens to adjust in other contexts, and that the DHS failed to respond adequately to the Board‘s repeated requests relating to its own practices in this regard.7
Even assuming, as argued by the respondent, that the language of
Under applicable asylum regulations, asylum officers (acting on behalf of the DHS) are authorized to approve, deny, refer, or dismiss the asylum application. See
In further support of this interpretation, we point out that had the drafters of the adjustment regulation intended the pendency of an asylum application to be considered a “technical reason” for being out of lawful status, such language could easily have been included in the regulation. Cf., e.g., section 212(a)(9)(B)(iii)(II) of the Act,
As previously noted,
In this case, the respondent filed an asylum application while she was still in nonimmigrant status. That status expired while the asylum application was pending. The asylum officer then referred the asylum application to the Immigration Court in January 1997. Once the DHS acted on the respondent‘s asylum application by referring it to the Immigration Court, the respondent could not be considered out of status “for technical reasons.” She did not seek to apply for adjustment of status until well after the referral. Consequently, we agree with the DHS that the respondent was precluded from seeking adjustment of status under sections 245(a) and (c) of the Act.
As a final matter, the parties have responded to our request for opinions regarding the applicability to this case of certain DHS opinion letters and an unpublished decision of the DHS‘s Administrative Appeals Unit. See Matter of Orban (AAU Dec. 23, 1993) (unpublished); Letter from Edward H. Skerrett, Chief, Immigrant Branch, Adjudications, to Ron Tasoff, Esq. (Apr. 6, 1994), reprinted in 71 Interpreter Releases, No. 18, May 9, 1994, at 621, 641-42 (Appendix II); Letter from James Puleo, Assistant Commissioner, Adjudications, to Paul Parsons, P.C. (Nov. 2, 1987), reprinted in 64 Interpreter Releases, No. 48, Dec. 21, 1987, at 1389, 1412 (Appendix IX).
First, we point out that these opinions are not binding precedent for the Board. See, e.g., Matter of Ma, 22 I&N Dec. 67 (BIA 1998). In any event, however, they are inapplicable to this case because each involves a factual scenario distinguishable from that at issue here. Both the 1993 Matter of Orban decision and the 1987 Puleo letter addressed situations where an alien‘s asylum application remained pending before the DHS at the time that eligibility for adjustment of status was being considered. The 1994 Skerrett letter addressed a situation where an asylum application was denied only after an adjustment application had been filed and was pending with the DHS. In this case, the asylum application was referred to the Immigration Court well before the adjustment application was filed. Moreover, the DHS has stated its position that those opinions are not correct, especially as they predate numerous statutory, regulatory, and policy changes regarding the processing of asylum and adjustment applications. Consequently, they are not directly on point, and they do not appear to set forth the DHS‘s current policy with regard to these issues.
Our holding is narrow and limited to the factual scenario at issue in this case. In particular, our decision relates only to those situations in which an asylum application was filed while the alien was in nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court by the DHS prior to the time the alien applied for adjustment of status. Moreover, we point out that our decision does not impact those aliens who are not subject to the section 245(c) restrictions—for instance, aliens who seek adjustment of status as immediate relatives or special immigrants, or aliens who can qualify for section 245(i) adjustment notwithstanding the section 245(c) restrictions. Sections 245(c), (i) of the Act;
II. RESPONDENT‘S APPEAL OF THE IMMIGRATION JUDGE‘S JULY 16, 1999, DECISION
We turn, then, to the issues that were pending before the Board at the time this matter was remanded to the Immigration Court in 2002. The respondent had appealed from the Immigration Judge‘s denial of her applications for asylum and withholding of deportation. She claimed that she was persecuted in the past in Ukraine, and faced future persecution there, on account of her Evangelical Christian religion. The Immigration Judge concluded that the respondent did not meet her burden of proof because she failed to submit adequate corroborative evidence that she was a practicing Evangelical Christian while she was living in Ukraine. We disagree.9
The Immigration Judge made no finding that the respondent‘s testimony was not credible. A review of the record reflects that her testimony was consistent as to all material aspects, including her assertion that she was an Evangelical Christian, as were her parents. See Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000); Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998); cf. Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000) (holding that it is inappropriate to base an adverse credibility finding solely on the failure to provide corroboration).
We find, upon crediting the respondent‘s testimony, that the harm she suffered, primarily as a result of a series of home invasions during which she was seriously injured, was on account of her religious beliefs and practices, and that it rose to the level of persecution under the standard articulated in Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998). We therefore conclude that the respondent suffered past persecution and is entitled to the resulting regulatory presumption that she has a well-founded fear of future persecution if she must return to Ukraine.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The Immigration Judge‘s September 27, 2002, decision granting the respondent adjustment of status is vacated, and the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.