LEGASPI, 25 I&N Dec. 328 (BIA 2010)

Cite as 25 I&N Dec. 328 (BIA 2010) Interim Decision #3694
1 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1998, Pub. L. No.105–119, § 111(b), 111 Stat. 2440, 2458.
328
Matter of Michael Raymund Aguirre LEGASPI, Respondent
File A097 368 288 – Los Angeles, California
Decided September 1, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien is not independently “grandfathered” for purposes of adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i) (2006), simply
by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the
result of having been a derivative beneficiary of a visa petition.
FOR RESPONDENT: Richard M. Loew, Esquire, South Pasadena, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elena Kusky, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and GREER, Board Members.
GREER, Board Member:
On January 14, 2008, an Immigration Judge denied the respondent’s
application for adjustment of status under section 245(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(i) (2006), but granted him voluntary
departure. The respondent, a native and citizen of the Philippines, has
appealed from that decision. The appeal will be dismissed.
This case presents the question whether the spouse of an alien who
is grandfathered for purposes of section 245(i) of the Act can independently
adjust his status under section 245(i). We hold that he cannot.
Section 245(i) of the Act permits adjustment of status for certain aliens
who are (1) ineligible under section 245(a) for entering without inspection
or (2) disqualified under section 245(c) of the Act. As originally enacted,
section 245(i) was scheduled to sunset on October 1, 1997.1
However,
Congress added a grandfathering provision that allows some aliens to continue
to benefit from section 245(i). Section 245(i)(1) of the Act. Under the
regulations relating to this provision, the term “grandfathered aliens”Cite as 25 I&N Dec. 328 (BIA 2010) Interim Decision #3694
2 Both parties represent that Ms. Blanco adjusted her status under section 245(a) of the Act.
However, because she was a derivative beneficiary of the 1987 visa petition, she
remains eligible for adjustment of status under section 245(i) until she adjusts once under
that section. See Memorandum from William R. Yates, Assoc. Dir. for Operations,
to USCIS officials (Mar. 9, 2005), at §§ 3D(1), 3E(2) (clarifying eligibility requirements for
adjustment of status under section 245(i)), 2005 WL 628644.
329
encompasses beneficiaries (and their derivative beneficiaries, including family
members specified in section 203(d) of the Act, 8 U.S.C. § 1153(d) (2006))
of visa petitions or labor certifications that were (1) filed on or before
April 30, 2001; (2) properly filed; and (3) approvable when filed. Id.; 8 C.F.R.
§ 1245.10(a) (2010); see also Matter of Rajah, 25 I&N Dec. 127, 133-35
(2009) (discussing the mechanics of section 245(i) of the Act).
The respondent married Ms. Blanco, who is a lawful permanent resident,
in 2003. As a child, Ms. Blanco qualified as a derivative beneficiary
of a 1987 visa petition filed by her paternal grandfather on her father’s behalf.
Ms. Blanco did not adjust her status through her grandfather’s petition.
Instead, her status was adjusted via an employment-based immigrant visa
petition that was filed in April 2002. Even though her adjustment was not
based on the 1987 petition, she remains a grandfathered alien for purposes
of accessing section 245(i) to adjust status.2
The respondent is not eligible to adjust his status under section 245(a)
because he is an alien who failed to maintain lawful status after entry. Section
245(c)(2) of the Act. Thus, he can only apply for adjustment of status under
section 245(i), but he cannot independently qualify to adjust under that section
because he is not a grandfathered alien. See 8 C.F.R. §§ 1245.10(a)(1)(i), (b).
However, he claims that he is eligible to adjust his status under section 245(i)
as a derivative beneficiary of Ms. Blanco, because she is a grandfathered alien.
The Department of Homeland Security (“DHS”) counters that the
respondent cannot adjust his status under section 245(i) of the Act because
Ms. Blanco is not the principal beneficiary of the 1987 visa petition. The
principal beneficiary of that petition was her father. The DHS argues that
the statute and the regulations permit a spouse or child accompanying
or following to join a principal beneficiary who is adjusting status to be treated
as a grandfathered alien, but not someone in the respondent’s position.
See 8 C.F.R. § 1245.10(a)(1)(i).
Both the statute and the regulations extend eligibility for section 245(i)
adjustment to an alien who is the beneficiary (including a spouse or child
of the alien beneficiary, if eligible to receive a visa under section 203(d) of the
Act) of a visa petition or labor certification filed on or before April 30,
2001, in certain circumstances. Section 245(i)(1) of the Act; 8 C.F.R.
§§ 1245.10(a)(1)(i), (b). We agree with the DHS that the respondent cannot
independently adjust his status under section 245(i) because he does not haveCite as 25 I&N Dec. 328 (BIA 2010) Interim Decision #3694
330
a qualifying relationship to the principal beneficiary of the 1987 petition.
See Landin-Molina v. Holder, 580 F.3d 913, 918 (9th Cir. 2009) (explaining
that a derivative spouse is only eligible for adjustment of status under section
245(i) if he or she is “accompanying or following to join” the principal alien).
The language of section 245(i) makes clear that it applies only to the
beneficiary of the visa petition and to that principal alien’s spouse or child
(and only if those relatives are eligible to receive a visa under section 203(d)).
Section 245(i)(1)(B) of the Act. The respondent was not the beneficiary
of a visa petition; nor was he ever the spouse or child of the principal
alien beneficiary, Ms. Blanco’s father. Therefore, the respondent cannot
be grandfathered as a derivative.
Moreover, had Ms. Blanco been married at the time her grandfather’s
petition was filed, she would not have qualified as a derivative beneficiary.
If married, she would not have met the definition of a “child” for purposes
of section 203(d) of the Act. See section 101(b)(1) of the Act, 8 U.S.C.
§ 1101(b)(1) (2006) (excluding married individuals from the definition
of a child). In other words, Ms. Blanco’s derivative beneficiary status
depended on her being a “child” who was accompanying or following to join
her father. The respondent simply cannot claim to independently qualify for
section 245(i) adjustment of status on the basis of a relationship that would
have precluded Ms. Blanco from qualifying in her own right.
For these reasons, we conclude that the Immigration Judge properly denied
the respondent’s application for adjustment of status. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted
by the Department of Homeland Security (“DHS”). See section 240B(b)
of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2006); see also
8 C.F.R. §§ 1240.26(c), (f) (2010). In the event the respondent fails
to voluntarily depart the United States, the respondent shall be removed
as provided in the Immigration Judge’s order.
NOTICE: If the respondent fails to voluntarily depart the United States
within the time period specified, or any extensions granted by the DHS, the
respondent shall be subject to a civil penalty as provided by the regulations
and the statute and shall be ineligible for a period of 10 years for any further
relief under section 240B and sections 240A, 245, 248, and 249 of the Act,
8 U.S.C. §§ 1229b, 1255, 1258, and 1259 (2006). See section 240B(d) of the
Act.Cite as 25 I&N Dec. 328 (BIA 2010) Interim Decision #3694
331
WARNING: If the respondent files a motion to reopen or reconsider
prior to the expiration of the voluntary departure period set forth above,
the grant of voluntary departure is automatically terminated; the period
allowed for voluntary departure is not stayed, tolled, or extended. If the
grant of voluntary departure is automatically terminated upon the filing
of a motion, the penalties for failure to depart under section 240B(d) of the Act
shall not apply. See Voluntary Departure: Effect of a Motion To Reopen
or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927, 79,937-38
(Dec. 18, 2008) (codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1)).
WARNING: If, prior to departing the United States, the respondent files
any judicial challenge to this administratively final order, such as a petition for
review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant
of voluntary departure is automatically terminated, and the alternate order
of removal shall immediately take effect. However, if the respondent files
a petition for review and then departs the United States within 30 days of such
filing, the respondent will not be deemed to have departed under an order
of removal if the alien provides to the DHS such evidence of his or her
departure that the Immigration and Customs Enforcement Field Office
Director of the DHS may require and provides evidence DHS deems sufficient
that he or she has remained outside of the United States. The penalties for
failure to depart under section 240B(d) of the Act shall not apply to an alien
who files a petition for review, notwithstanding any period of time that
he or she remains in the United States while the petition for review is pending.
See 73 Fed. Reg. at 76,938 (codified at 8 C.F.R. § 1240.26(i)).