Akram v. Holder

Decision Date09 July 2013
Docket NumberNo. 12–3008.,12–3008.
Citation721 F.3d 853
PartiesMahvash AKRAM, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Held Invalid

8 C.F.R. §§ 245.1(i), 1245.1(i)Yael D. Aufgang (argued), Attorney, Jones Day, Chicago, IL, for Petitioner.

Lisa M. Damiano (argued), Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.

Before BAUER, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

The Immigration and Nationality Act (“INA”), Pub.L. 82–414, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., is a bit of a beast. It is not known for being warm or cuddly; words like “intricate” and “Byzantine” come more readily to mind. Zeqiri v. Mukasey, 529 F.3d 364, 370 (7th Cir.2008). Nor is it known for being easy to understand; we have often remarked on its fiendish complexity. See, e.g., O'Sullivan v. USCIS, 453 F.3d 809, 812 (7th Cir.2006); Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir.2004); Asani v. INS, 154 F.3d 719, 727 (7th Cir.1998). But even the INA has room for a human touch: it has the potential to bring families together to share in the American dream.

This case demonstrates both the INA's tangled construction and its tender heart. Mahvash Alisha Akram came to this country in 2006. She hoped to join her recently remarried mother and become a lawful permanent resident. Her hopes were dashed when she ran headlong into a regulatory wall. She now argues that the regulation that thwarted her cannot stand. Because we find that the regulation at issue directly conflicts with the will of Congress, we agree with Akram and grant her petition for review.

I. Background

The INA gives special immigration preferences to aliens with relatives in the United States. See, e.g.,8 U.S.C. §§ 1151–1154. These preferences allow aliens to rejoin their families in the United States by making them eligible for permanent immigrant visas. Unfortunately, it sometimes takes months or years for permanent immigrant visas to be processed. See, e.g., U.S. Dep't of State, Bureau of Consular Affairs, Family-based Immigrant Visas, http:// travel. state. gov/ visa/ immigrants/ types/ types_ 1306. html (last visited July 1, 2013); U.S. Dep't of State, Bureau of Consular Affairs, Immigrant Visa for a Spouse of a U.S. Citizen (IR1 or CR1), http:// travel. state. gov/ visa/ immigrants/ types/ types_ 2991. html (last visited July 1, 2013). That delay means that people applying for visas to join their families in the United States generally must spend long periods waiting outside the United States for their visa applications to be processed.

This wait can be particularly hard on people who are separated from their spouses and children. Congress responded to this problem in two ways. The first is 8 U.S.C. § 1101(a)(15)(K), which gives short-term, nonimmigrant visas to the spouses and fiance(e)s of U.S. citizens, as well as to the children of those spouses and fiance(e)s. It is apparently much faster to issue a nonimmigrant visa than it is to issue a permanent immigrant visa. A short-term, non-immigrant visa therefore allows an alien to enter the United States faster than she would otherwise be able.

Section 1101(a)(15)(K) makes an alien eligible for a non-immigrant visa if he or she:

(i) is the fiancee or fiance of a citizen of the United States ... and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;

(ii) has concluded a valid marriage with a citizen of the United States ... who is the petitioner, is the beneficiary of a petition to accord a status under section 1151(b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or

(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien[.]

Id. These temporary, non-immigrant visas are called “K visas.” There are four categories:

• K–1: fiance(e)s of United States citizens;

• K–2: minor children of K–1s;

• K–3: spouses of United States citizens;

• K–4: minor children of K–3s.

In re Sesay, 25 I. & N. Dec. 431, 433 n. 3 (BIA 2011)( citing8 C.F.R. § 214.1(a)(1)(v), (a)(2)). The last two, K–3 and K–4 visas, are particularly relevant here.

Congress's second response to the problem of separation of spouses and children is 8 U.S.C. § 1255. That section gives the Attorney General the power to “adjust” the status of an alien already present in the United States from non-immigrant status to immigrant status without the alien having to return to his or her home country. See8 U.S.C. § 1255(a); Benslimane v. Gonzales, 430 F.3d 828, 832–33 (7th Cir.2005); Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir.2005). Taken together with the K visa system, adjustment of status allows an alien spouse, fiance(e), or child to enter the United States temporarily while her permanent visa is being processed. Once the alien's application for a permanent visa is complete, the alien may change her status from non-immigrant to immigrant without having to leave the country first. In short, K visas and adjustment of status allow aliens to wait out the procedural slog with their families in the United States.

Petitioner Mahvash Alisha Akram is a citizen of Pakistan, as are her mother and her younger sister. Akram's mother married Farhan Siddique, a United States citizen, outside the United States on July 4, 2005. Akram was eighteen years old at the time. After the marriage, Siddique wanted to move his new wife and stepchildren to the United States as permanent immigrants. Accordingly, Siddique requested K visas so his family could wait for their permanent visas in the United States instead of Pakistan. He also started the ball rolling on obtaining permanent visas for his family by filing alien relative petitions on their behalf. These petitions—called “I–130 petitions”—establish a formal family relationship to a U.S. citizen or a lawful permanent resident. Thus, Siddique's I–130 petition would, if granted, establish a formal relationship between Siddique and his new family members in the eyes of the U.S. government. 8 C.F.R. § 204.1(a)(1). That relationship, in turn, would make his family eligible for immigrant visas as “immediate relatives” of a U.S. citizen. 8 U.S.C. § 1151(b)(2)(A)(i).

Akram's mother duly received a K–3 visa, and her I–130 petition was granted at a later date. Akram's younger sister received a K–4 visa and also had her I–130 petition granted. Akram, however, found herself in a strange situation—her request for a K visa was granted, but her I–130 petition was denied.

This odd outcome arose from Akram's age. As discussed, an alien is eligible for a K–4 visa if she is the “minor child” of a K–3 visa-holder and is “accompanying, or following to join,” the K–3. 8 U.S.C. § 1101(a)(15)(K)(iii). For K-visa purposes, the term “minor child” means an unmarried son or daughter who is under twenty-one years old. See8 U.S.C. § 1101(b)(1) (defining “child”); In re Le, 25 I. & N. Dec. 541, 550 (BIA 2011) (applying definition of “child” in 8 U.S.C. § 1101(b)(1) to the term “minor child” under § 1101(a)(15)(K)(iii)); accord Carpio v. Holder, 592 F.3d 1091, 1098 (10th Cir.2010). Akram was eighteen years old and unmarried when her mother received a K–3 visa. Accordingly, Akram was eligible for a K–4 visa as her mother's “minor child,” 8 U.S.C. § 1101(a)(15)(K)(iii), and Akram received her visa on February 28, 2006.

Now here is the strange part: although Akram was her mother's “minor child” for K-visa purposes, she was not Siddique's “child” for I–130 purposes. The reason is that Akram is Siddique's stepdaughter, not his biological daughter. A stepchild qualifies as a “child” for immigration purposes only if she “had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” 8 U.S.C. § 1101(b)(1)(B). Because Akram was already eighteen when her mother married Siddique, she was too old to be his “child,” even though she was still her mother's “minor child.” As a result, Akram could not show a family relationship with Siddique, and the I–130 petition that Siddique filed on her behalf was denied on January 23, 2006.

Akram accordingly received permission to be in the United States, but only temporarily, until March 21, 2007, as a K–4 visa-holder. Akram moved to the United States to join her mother and applied to adjust her status and become a lawful permanent resident. Her application was denied—because no I–130 petition had been granted on Akram's behalf, she was not eligible to become a permanent immigrant as the relative of a U.S. citizen (i.e., Siddique). In the meantime, Akram's mother became a lawful permanent resident and filed her own I–130 alien relative petition on Akram's behalf on June 24, 2008. See8 U.S.C. § 1153(a)(2) (providing visa eligibility for “unmarried sons and unmarried daughters of permanent resident aliens”). So far as we know, that petition and its related paperwork are still working their way through the system. Nevertheless, Akram's mother's petition is important, and we will return to it later in our opinion.

Akram remained in the United States after her K–4 visa expired, and removal proceedings against her began on April 17, 2009. Akram conceded removability but argued that she should be able to stay and adjust her status. In support, Akram pointed to the differences between how the children of fiance(e)s (K–2s) and the children of spouses (K–4s) become permanent residents. Under current regulations, K–2s need not separately apply for permanent immigrant visas. After she has received a K–2 visa, a K–2 may adjust status and become a permanent resident as soon as her parent's marriage is complete; she does not need to file an...

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