Carpio v. Holder

• Citation: 592 F.3d 1091
• Decision Date: 12 January 2010
• Docket Number: No. 08-9536.,08-9536.
• Parties: Wladimir Colmenares CARPIO, Petitioner, v. Eric J. HOLDER, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

592 F.3d 1091

Wladimir Colmenares CARPIO, Petitioner, v. Eric J. HOLDER, United States Attorney General,^* Respondent.

No. 08-9536.

United States Court of Appeals, Tenth Circuit.

January 12, 2010.

Philip M. Alterman, Stern Elkind Curray & Alterman, Denver, CO, for Petitioner.

James E. Grimes, Senior Litigation Counsel (Linda S. Wernery, with him on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before HENRY, Chief Judge, MURPHY and TYMKOVICH, Circuit Judges.

HENRY, Chief Judge.

In 2002, Wladimir Colmenares Carpio (Mr. Colmenares), along with his mother and sister, entered the United States on a K visa, which permits alien fiancées and fiancés (K-1 visa holders) and their children (K-2 visa holders), to enter the United States to marry United States citizens. Under our immigration laws, upon such a marriage, eligible K-1 visa holders and their children under age twenty-one may adjust their status to that of lawful conditional permanent residents. See 8 U.S.C. §§ 1186a, 1255(d).

Upon the marriage of his mother to a United States citizen, and over six months prior to his twenty-first birthday, Mr. Colmenares applied for a conditional adjustment of status under 8 U.S.C. § 1255(d). On September 23, 2005, almost three years after he entered the United States, and almost two-and-one-half years after he filed his application, the United States Citizenship and Immigration Services (USCIS) denied his request on the grounds that he was no longer under age twenty-one. An immigration judge agreed with that conclusion and the Board of Immigration Appeals (BIA) affirmed.

Mr. Colmenares now argues that, under 8 U.S.C. § 1255(d), K-2 visa holders applying for adjustment of status need not be under twenty-one when those applications are adjudicated. In response, the government defends the date-of-adjudication theory. It also urges an alternative ground for denial of Mr. Colmenares's application: that an immigrant visa was not "immediately available" to him under 8 U.S.C. § 1255(a).

In light of the terms used in the relevant statutes, decisions from other courts, and the policies underlying our immigration laws, we conclude that a K-2 visa holder who timely applies for an adjustment of status under 8 U.S.C. § 1255(d) must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated. We reject the government's proposed alternative ground for affirmance because the BIA did not reach that issue and the government's argument is inconsistent with a USCIS regulation and case authority. In light of the fact that Mr. Colmenares was under twenty-one when he sought to enter the United States, we reverse the decision of the BIA and remand for proceedings consistent with this opinion.

I. BACKGROUND

Mr. Colmenares is a native and citizen of Venezuela. In early 2002, his mother became engaged to James Sterling, a United States citizen working in Venezuela. Mr. Colmenares, his mother, and his sister sought to accompany Mr. Sterling to the United States and to become lawful permanent residents here.

A. The application process for lawful permanent residence

Under the applicable immigration laws, an alien with children who is engaged to a United States citizen and who seeks to enter the United States with them and become a lawful permanent resident must proceed through a detailed procedure involving six steps. See generally Choin v. Mukasey, 537 F.3d 1116, 1118-19 (9th Cir. 2008) (describing the process of applying for an adjustment of status). First, on behalf of the alien and his or her minor children, the affianced citizen must file a petition for a visa with the Secretary of Homeland Security. See 8 U.S.C. § 1184(d)(1). In order to obtain the visa, the citizen must establish that he or she and his or her fiancé(e) had "previously met in person within 2 years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival[.]" Id.; see also Form for I1-29 Petition, available at http://www.uscis.gov/files/ Form I-129.

Second, upon the USCIS's approval of the citizen's petition, the citizen's fiancé(e) and his or her minor children must apply for K visas with the United States consular office in their country of origin. See 8 U.S.C. § 1184(d); 22 C.F.R. § 41.81 (State Department regulation addressing the issuance of K visas by consular officers). In this context, a "child" is defined as an unmarried person under twenty-one. See 8 U.S.C. § 1101(b)(1). The fiancé(e) and the child must file various documents establishing their eligibility for the visas and submit to a medical examination. See Verovkin v. Still, No. C 07-3987, 2007 WL 4557782, at *6 (N.D.Cal. Dec. 21, 2007) (discussing the application process). The consular office must determine that the K-2 applicant is a child (i.e., under twenty-one years of age). See id.; 22 C.F.R. § 41.81(c).

Third, once the K visas are issued (requiring action in both the United States and the country of origin), the fiancé(e) and his or her minor children may enter the United States. Fourth, the citizen and his or her fiancé(e) must marry within ninety days of the fiancé(e)'s entry. 8 U.S.C. § 1184(d). If the marriage does not occur within that period, the fiancé(e) and his or her children must depart from the United States, and they are subject to removal if they do not comply. Id.

Prior to 1986, the status of the non-citizen spouse and minor children was automatically adjusted to that of lawful permanent resident as soon as a valid marriage occurred. However, in 1986, Congress passed the Immigration Marriage Fraud Amendments (IMFA), Pub.L. 99-639, 100 Stat. 3537 (Nov. 10, 1986), which sought to deter fraud by aliens seeking to acquire lawful permanent residence in the United States based on marriage to United States citizens or lawful permanent resident aliens. Under these amendments, the now-married alien spouse and his or her children must complete a fifth step: they must file an application for an adjustment of status "to that of . . . alien[s] lawfully admitted to the United States on a conditional basis." 8 U.S.C. § 1255. The relevant statute provides in part:

(a) The status of an alien who was . . . admitted . . . into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

. . . .

(d) . . . The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien's nonimmigrant status under section 1101(a)(15)(K) of this title.

Id.

The 1986 amendments also provide that the initial adjustment of status granted to K-1 and K-2 visa holders is conditional. See 8 U.S.C. § 1186a(a)(1) (stating that "an alien spouse . . . and an alien son or daughter . . . shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis"). "[D]uring the 90-day period before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence," the couple and the children of the non-citizen may proceed to a sixth step in the adjustment process: filing a petition to have the conditional status removed. See id. § 1186a(d)(1). In the joint petition, the couple must affirm that they are still married and that they did not enter into marriage for immigration purposes. Id. They must also provide information about their places of residence and their employment histories over the previous two years. Id.

B. Mr. Colmenares's applications and the decisions of the immigration judge and the BIA

Mr. Colmenares and his family completed the first four steps in this process of seeking lawful, non-conditional permanent residence. First, Mr. Sterling filed a visa petition on behalf of Mr. Colmenares's mother, as well as his sister and Mr. Colmenares himself, and the USCIS granted the petition. Second, Mr. Colmenares sought a K-2 visa from the United States consular officer in Venezuela, who issued it to him on September 24, 2002, when Mr. Colmenares was twenty years old. Third, on September 26, 2002, Mr. Colmenares, his mother, and his sister entered the United States. Fourth, Mr. Colmenares's mother married Mr. Sterling on November 16, 2002, within ninety days of her entry into the United States, as required by 8 U.S.C. § 1184(d)(1).

On January 2, 2003, Mr. Colmenares, his mother, and his sister applied for adjustments of status with the Denver District Office of USCIS. Mr. Colemenares turned twenty-one on July 14, 2003, while his application for adjustment of status was still pending.

Over two years later, on September 23, 2005, the USCIS denied Mr. Colmenares's application. It reasoned that he was over twenty-one on the date of adjudication of the application. The Department of Homeland Security ("DHS") then served Mr. Colmenares with a Notice to Appear in removal proceedings, alleging that Mr. Colmenares was removable under 8 U.S.C. § 1227(a)(1)(B) (as an alien who was present in the...