In re Hieu Trung Le
| Decision Date | 23 June 2011 |
| Docket Number | Interim Decision #3719 |
| Parties | Matter of Hieu Trung LE, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
A derivative child of a nonimmigrant fiancé(e) visa holder under section 101(a)(15)(K)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(K)(iii) (2006), is not ineligible for adjustment of status simply by virtue of having turned 21 after admission to the United States on a K-2 nonimmigrant visa.
FOR RESPONDENT: Lisa H. York, Esquire, Denver, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY: Leila Cronfel, Assistant Chief Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.
GREER, Board Member:
In this case, we address issues pertaining to the child of a nonimmigrant fiancee visa holder who obtained admission as a derivative of his mother's fiancee status. The respondent, a K-2 visa holder, sought to adjust his status to that of a lawful permanent resident, but he had turned 21 prior to the adjudication of his application for adjustment of status by the Immigration Judge. We conclude that to adjust status based on a K-2 visa, an alien derivative child must establish that he or she was under 21 years of age at the time of admission to the United States. The respondent's appeal will be sustained and the record will be remanded to the Immigration Judge to allow the respondent to renew his application for adjustment of status pursuant to sections 245(a) and (d) of the Immigration and Nationality Act, 8 U.S.C. §§ 1255(a) and (d) (2006).
The respondent was born on March 24, 1985, in Vietnam. His mother, also a native and citizen of Vietnam, became engaged to a United States citizen who filed a Petition for Alien fiancé(e) (Form I-129F) with the U.S. Citizenship and Immigration Service ("USCIS") on her behalf on December 8, 2003. The petition was approved, and the respondent's mother was issueda K-1 nonimmigrant fiancee visa pursuant to section 101(a)(15)(K)(i) of the Act, 8 U.S.C. § 1101(a)(15)(K)(i) (2000). The respondent, who was then 19 years old, was issued a K-2 nonimmigrant visa as the minor child who was accompanying, or following to join, his mother, a K-1 visa holder, pursuant to section 101(a)(15)(K)(iii) of the Act. On December 27, 2004, the respondent and his mother were admitted to the United States on their K visas, when the respondent was still 19 years old.
On December 30, 2004, within a week of her admission, the respondent's mother married her United States citizen fiance. Approximately 2 months later, on February 24, 2005, both the respondent and his mother filed applications to adjust status with the USCIS. The respondent's mother was granted adjustment, but the respondent's application was denied. The USCIS found that the respondent could not qualify as the "stepchild" of the fiance petitioner within the meaning of section 101(b)(1)(B) of the Act because he had already reached the age of 18 at the time of his mother's marriage. He was therefore determined to be ineligible to adjust his status.
The respondent was subsequently placed in removal proceedings by the issuance of a Notice to Appear (Form I-862) on March 24, 2006. At a hearing before the Immigration Judge, the respondent conceded removability and sought to renew his adjustment application. The Immigration Judge denied the respondent's adjustment application, but he disagreed with the reason given by the USCIS for its denial. The Immigration Judge concluded that under section 245(d) of the Act, the respondent had been eligible to adjust his status to that of a conditional permanent resident when his application was before the USCIS, because he was still under 21 years old. Nevertheless, the Immigration Judge determined that the respondent could no longer adjust because he had since turned 21 and could not qualify as a "child," as that term is defined in section 101(b)(1) of the Act. The respondent has appealed from the Immigration Judge's February 25, 2008, decision.
The issue we must resolve is whether a fiancé(e) derivative child who accompanied or followed to join his alien fiancé(e) parent to the United States remains eligible to adjust status if, after satisfying the other statutory requirements, he attains the age of 18 or 21.1
As we explained in our recent precedent, Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), which addressed adjustment eligibility for the principal fiancé(e) visa holder, we must examine whether the respondent can satisfy the requirements of section 245(a) of the Act. Because the statutory provisions governing adjustment of status for fiancé(e)s and their derivatives have undergone significant changes over the years, we are presented with several questions of statutory interpretation without obvious answers.2 Consistent with Matter of Sesay, we resolve these statutory gaps and ambiguities by reference to the law as originally enacted, because the amendments were designed solely to address marriage fraud, not to otherwise disrupt the existing procedures for issuing visas to fiancé(e) derivative children. As with Sesay, the original statutory and regulatory petition, visa issuance, and admission processes remain intact. Thus, the former law provides guidance regarding congressional intent as to who may qualify as a fiancé(e) derivative child.
Prior to the Immigration Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 ("IMFA"), fiancé(e)s and their derivative children adjusted status under former section 214(d) of the Act, 8 U.S.C. § 1184(d) (1982). Section 214(d) allowed these aliens to proceed directly to adjustment once the qualifying marriage had been accomplished, provided they were otherwise admissible. In 1986, fiancé(e) adjustments were incorporated into the adjustment provisions under section 245(a) of the Act. That section requires immigrant visa eligibility and availability—requirements that nonimmigrant fiancé(e)s and their children would be unable to meet if these terms were given their ordinary meaning under our immigration laws.
We must decide whether the statute allows a nonimmigrant fiancé(e)'s derivative child to satisfy the immigrant visa eligibility and availability requirements of section 245(a) in the same way we found that the principal fiancé(e) visa holder may satisfy those statutory tests in Matter of Sesay, 25 I&N Dec. at 438-40. This determination encompasses the time at which the fiancé(e) derivative child's age is fixed for purposes of establishing adjustment eligibility. We must also decide who may qualify as the "minor child of [an alien fiancé(e) parent who] is accompanying, or following to join, the alien" under section 101(a)(15)(K)(iii), because the Act does not define a "minor child."
Section 245(a) of the Act provides, in relevant part, as follows:
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.
fiancé(e)s, as holders of nonimmigrant visas, are unable to satisfy the immigrant visa eligibility and availability requirements in sections 245(a)(2) and (3) of the Act. This is also true for their derivative children. In Matter of Sesay, 25 I&N Dec. at 438-39, we determined, consistent with past and current administrative and consular practice, that alien fiancé(e)s are similar, but not identical to, immediate relatives for these purposes, even though they do not meet the statutory definition of an immediate relative under section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006).
The fiancé(e) visa petition and adjustment processes are hybrid in the sense that they combine both immigrant and nonimmigrant visa attributes—the fiancé(e)s and their derivatives are not perfect matches for either category. For example, while the statute does not provide for derivatives of immediate relatives, children may be admitted as the derivatives of alien fiancé(e) parents.3 Section 101(a)(15)(K)(iii) of the Act provides for issuanceof a nonimmigrant visa to "the minor child" who "is accompanying, or following to join," the fiancé(e) parent. In this situation, the alien fiancé(e) parent is the beneficiary of the I-129F petition filed by the United States citizen fiancé(e) petitioner, and no separate petition is required for the fiancé(e)'s derivative child. 8 C.F.R. § 214.2(k)(3) (2011). The regulations explain that a fiancé(e) derivative child "may be accorded the same nonimmigrant classification as the beneficiary [of the fiancé(e) petition] if accompanying or following to join him or her." Id. Thus, the fiancé(e) derivative child is entitled to the same status as the fiancé(e) parent.
In Sesay, we concluded that the alien fiancé(e) parent establishes visa eligibility and availability in satisfaction of section 245(a) of the Act at the time of admission to the United States with the K-1 nonimmigrant visa, provided that he or she enters into a bona fide marriage with the fiancé(e) petitioner within 90 days. The alien's admission to the United States was selected as the appropriate date to establish eligibility for adjustment. This date best marks visa eligibility and availability, because "events that may occur between visa issuance and admission could extinguish the visa under 8 C.F.R. § 212.2(k)(5)," and because visa eligibility is reassessed upon ...
To continue reading
Request your trial