Castro-Soto v. Holder, 08-1399.

Citation596 F.3d 68
Decision Date24 February 2010
Docket NumberNo. 08-1399.,08-1399.
PartiesFrancisco Antonio CASTRO-SOTO, Petitioner, v. Eric H. HOLDER, Jr.<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
596 F.3d 68
Francisco Antonio CASTRO-SOTO, Petitioner,
v.
Eric H. HOLDER, Jr.*, Attorney General, Respondent.
No. 08-1399.
United States Court of Appeals, First Circuit.
Submitted March 2, 2009.
Decided February 24, 2010.

[596 F.3d 69]

Ramon M. Gonzalez, for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel and Regan Hildebrand, Attorney, Office of Immigration Litigation, United States Department of Justice, for respondent.

Before BOUDIN, JOHN R. GIBSON,** and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.


Francisco Antonio Castro-Soto, a citizen and national of the Dominican Republic,

596 F.3d 70

petitions for review of the denial of his application for adjustment of status. The Board of Immigration Appeals ("BIA") determined that Castro-Soto was ineligible for adjustment of status because he entered the United States illegally and could not be "grandfathered" under Section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i). After review, we agree and deny his petition.

I.

In 2005, Castro-Soto entered the United States illegally. He was subsequently detained and charged with removability. At his removal proceeding, Castro-Soto sought adjustment of status, "a process whereby certain aliens physically present in the United States may obtain permanent resident status .... without leaving the United States." De Acosta v. Holder, 556 F.3d 16, 18 (1st Cir.2009). In requesting adjustment, Castro-Soto relied in part on an I-130 visa petition that his spouse had filed on his behalf in December 2004. Despite a statutory bar against adjustment by those who have entered the country illegally, Castro-Soto asserted that the visa petition could support adjustment of his status, because he was "grandfathered" based on a previous visa petition that had been filed on his behalf several years earlier.

This was not the first time that Castro-Soto had attempted to adjust his status based on his marriage to a United States citizen. He first entered the United States in 1988.1 At some point thereafter, he married his first wife, a United States citizen. In March 1992, she filed an I-130 petition on his behalf, seeking to qualify him as an immediate relative-spouse. See 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1); 8 C.F.R. § 204.2(a).

Based on his then-spouse's immediate relative visa petition, Castro-Soto filed an I-485 application for adjustment of status to that of lawful permanent resident. See 8 U.S.C. § 1255; 8 C.F.R. § 245.1(a). The immediate relative visa petition received final approval in June 1992, and in December 1992 Castro-Soto's application for adjustment of status was also approved.

The approval of the application for adjustment of status contained conditions, however. Under the INA, when an alien who has been married to a United States citizen for less than two years receives permanent resident status by virtue of that marriage, the grant of permanent resident status is conditional. 8 U.S.C. § 1186a. The alien and his spouse must submit a second petition requesting the removal of conditions, at which point the government may terminate the alien's permanent status if it finds that the marriage is not bona fide. 8 U.S.C. § 1186a(c), (d). If the alien fails to have the conditions to lawful permanent residence removed, his permanent resident status is terminated as of the date of that determination. 8 U.S.C. § 1186a(c)(3)(C).

Castro-Soto and his spouse did later petition for removal of the conditions, but their petition was denied. An Immigration Judge ("IJ") subsequently found that the petition to remove conditions had been denied because the "[g]overnment questioned the bona fides of the marriage and the intent of the marriage."

596 F.3d 71

Castro-Soto and his first wife divorced in 2001. He then sought relief from the consequences of the previous denial of the joint petition for removal of conditions, through an application for a waiver based on a good faith marriage ending in divorce. In June 2002, the Department of Homeland Security ("DHS") denied the waiver application and placed Castro-Soto in removal proceedings. See 8 U.S.C. § 1227(a)(1)(D)(i) (classifying as "deportable" aliens whose conditional permanent resident status has been terminated).

During removal proceedings, Castro-Soto again sought a waiver for a good faith marriage ending in divorce, and alternatively requested cancellation of removal and voluntary departure. In September 2003, the IJ, though granting Castro-Soto voluntary departure, denied his requests for cancellation of removal and for a waiver. Castro-Soto appealed the IJ's decision to the BIA, which affirmed the IJ's decision in December 2004.

Also in 2004, Castro-Soto remarried. In January 2005, he left the country pursuant to the voluntary departure order, but not before filing a motion to reopen his case so that he could apply for adjustment of status based on his second wife's petition to categorize him as an immediate relative.2 He reentered the United States illegally eight days later and was subsequently placed in removal proceedings. Before the IJ, Castro-Soto again sought unsuccessfully to adjust his status, claiming that he was permitted to rely on the more recent visa petition because of a grandfathering mechanism triggered by the 1992 visa petition. The BIA affirmed the IJ's order pretermitting Castro-Soto's application for adjustment.

II.

Before us, Castro-Soto continues to argue that he is entitled to rely on the earlier I-130 petition filed in 1992 to adjust his status now. Typically, aliens who enter the United States without inspection or parole are prohibited from applying for adjustment of status. Echevarria v. Keisler, 505 F.3d 16, 19 (1st Cir.2007); see also 8 U.S.C. § 1255(a), (c). An exception to this general rule exists for beneficiaries of visa petitions that were filed before April 30, 2001. See 8 C.F.R. § 245.10(a)(1)(i)(A), (B); Echevarria, 505 F.3d at 19. Castro-Soto claims that because he is the beneficiary of his first wife's 1992 visa petition, he qualifies under this grandfathering provision to file again for adjustment.

An alien may qualify for grandfathering if he is physically present and the "beneficiary" of a visa petition. § 245.10(a)(1)(i). The visa petition relied upon by the alien must have been (1) filed before April 30, 2001, (2) "properly filed," and (3) "approvable when filed". Id. at (a)(1)(i)(A); (a)(2)(i); (a)(3).3 If the visa petition has met these three requirements, it may be used for grandfathering purposes even if it "was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing". Id. at (a)(3); see also, Echevarria, 505 F.3d at 19. The applicant bears the burden of proving...

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