http://www.greencardfamily.com/news/news2008/news2008_1104.htm
The Court's opinion in Choin v. Mukasey reflects the important lessons
that an agency decision can be overturned by a higher court and that
challenging a negative decision can result in a favorable ruling.
However, one of the reasons that the Federal Court was able to use its
interpretation of the law is that the BIA decision was not
particularly detailed and, thus, it was not given deference that might
otherwise have been given to a lower court's interpretation of the
law.
Generally, under immigration law, it is risky for a person to assume
that s/he can obtain any immigration benefit based upon a family
relationship, if the family relationship no longer exists.
On August 12, 2008, in Choin v. Mukasey, the U.S. Court of Appeals for
the Ninth Circuit ordered the Board of Immigration Appeals (BIA) to
consider Yelena Choin's Form I-485 Application for Adjustment of
Status based upon marriage, even though she was no longer married to
her U.S.-citizen husband. Generally, a foreign national spouse who is
filing for permanent residence based upon marriage to a U.S. citizen
must still be married at the time of the green card approval.
The Court found an exception to this for spouses who enter the U.S. on
the K-1 fianc=E9/e visa. This interpretation is limited to a K-1 fianc=E9/
e of a U.S. citizen. There is a specific section of law that addresses
the adjustment of status of K-1s and it is the wording of that section
that led to the conclusion reached by the Court.
The Choin case involved a woman who originally entered the United
States lawfully on a K-1 fianc=E9e visa and married her U.S. citizen
sponsor. As readers of MurthyDotCom and the MurthyBulletin may recall
from our Overview: K Visas for Fianc=E9/es and Spouses of USCs, the law
provides that a foreign national engaged to a U.S. citizen can enter
the United States in K-1 status for 90 days, within which time the
couple is to marry. Based on that marriage, the foreign national
spouse is eligible to file the I-485 to become a lawful permanent
resident (LPR), commonly referred to as a green card holder. This is
exactly what occurred in this case.
However, before the I-485 was acted upon, Ms. Choin and her husband
divorced. The divorce occurred on April 9, 2001. The USCIS denied the
adjustment or I-485 on August 27, 2001 because of the divorce.
Thereafter, Ms. Choin was placed in removal (formerly deportation)
proceedings. Ms. Choin fought the effort to remove her from the U.S.,
first appealing the decision of the Immigration Judge (IJ) to the
Board of Immigration Appeals (BIA) and ultimately filing an appeal
with the Ninth Circuit Court of Appeals. On August 12, 2008, the Court
ruled for her and ordered the BIA to process her I-485 consistent with
their interpretation of the law, allowing her to become a Conditional
LPR, valid for two years, notwithstanding the divorce.
The Court's opinion was based on the language and interpretation of
Section 245(d) of the Immigration and Nationality Act (INA). This
section specifies that a foreign national who enters the U.S. in K-1
status can only adjust to conditional LPR status (and not regular LPR
status) by filing an I-485 application based on marriage to the U.S.-
citizen sponsor of the K-1. Conditional LPR status is valid for two
years, unless the conditions are removed based upon the filing of an
application to remove the conditions.
http://www.greencardfamily.com/news/news2008/news2008_1104.htm
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