Cite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
606
Matter of Daniel Edgar ZAMORA-MOLINA, Respondent
Decided October 6, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Section 201(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1151(f)(2) (2006),
governs whether an alien who is the beneficiary of a visa petition according him or her
second-preference status as the child of a lawful permanent resident under section
203(a)(2)(A) of the Act, 8 U.S.C. § 1153(a)(2)(A) (2006), is an immediate relative upon
the naturalization of the petitioning parent.
(2) Pursuant to section 201(f)(2) of the Act, an alien’s actual, not adjusted, age on the date
of his or her parent’s naturalization determines whether he or she is an immediate
relative.
(3) Section 204(k)(2) of the Act, 8 U.S.C. § 1154(k)(2) (2006), does not allow an alien
to retain his or her 2A-preference status by opting out of automatic conversion to the
first-preference category as a son or daughter of a United States citizen upon his or her
parent’s naturalization.
FOR RESPONDENT: Jessica A. DeVader, Esquire, Wichita, Kansas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Justin Howard, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.
GREER, Board Member:
In this case, we address the question whether an alien who is older than
21 years of age on the date of his or her parent’s naturalization can qualify
as an immediate relative. We also consider whether an alien can retain
preference status as the child of a lawful permanent resident upon the
naturalization of his or her parent. In deciding these questions, we find that the
respondent is not eligible to adjust his status and will dismiss his appeal from
the Immigration Judge’s October 20, 2009, decision. The record will
be remanded to the Immigration Judge.Cite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
607
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was born on March 3,
1987. On July 7, 2000, he was inspected and admitted into the United States
on a B-2 nonimmigrant visa with authorization to remain in the United States
until January 5, 2001.
In August 2004, when the respondent was 17 years old, his mother filed
a Petition for Alien Relative (Form I-130) on his behalf to accord him
second-preference classification as the child of a lawful permanent resident
under section 203(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1153(a)(2)(A) (2000) (2A-preference category). On March 22, 2007, the
United States Citizenship and Immigration Services (“USCIS”) approved the
visa petition with an August 5, 2004, priority date. On July 24, 2009, when the
respondent was 22 years old and before his priority date became current, his
mother naturalized.
On January 23, 2008, the Department of Homeland Security (“DHS”)
charged the respondent with removability under section 237(a)(1)(B) of the
Act, 8 U.S.C. § 1227(a)(1)(B) (2006), as an alien who remained in the
United States longer than permitted. The respondent conceded the charge
of removability at a hearing before the Immigration Judge on August 28, 2009.
He then moved to terminate the proceedings, arguing that he was eligible
to adjust his status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006),
as the child of a United States citizen.
Although he was over 21 years old, the respondent argued that pursuant
to the provisions of the Child Status Protection Act, Pub. L. No. 107-208, 116
Stat. 927 (2002) (“CSPA”), he could retain his status as a “child” by applying
the formula found at section 203(h)(1) of the Act to his age at the time of his
mother’s naturalization. The DHS opposed, arguing that under section
201(f)(2) of the Act, 8 U.S.C. § 1151(f)(2) (2006), an alien’s biological age
on the date of his or her parent’s naturalization controls whether the alien
is an immediate relative. According to the DHS, the respondent did not
qualify as an immediate relative because he was 22 years old when his mother
naturalized on July 24, 2009.
The Immigration Judge denied the respondent’s motion on October 9, 2009,
finding him ineligible to adjust as an immediate relative for the reasons set
forth by the DHS. The Immigration Judge noted that the respondent was over
21 years of age when his mother naturalized, so he was accorded
first-preference classification as an unmarried son of a United States citizen
under section 203(a)(1) of the Act. However, a visa was not yet availableCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
608
to him as an alien from Mexico in the first-preference category with
an August 5, 2004, priority date. In a decision dated October 20, 2009, the
Immigration Judge found the respondent removable on his own admissions but
granted his application for voluntary departure. The respondent has appealed
the Immigration Judge’s finding that he is ineligible to adjust his status under
245(a) of the Act.
II. ISSUES
The first issue is whether section 201(f)(2) of the Act precludes the
respondent, who was over the age of 21 on the date of his mother’s
naturalization, from qualifying as an immediate relative. The second issue
is whether section 204(k)(2) of the Act, 8 U.S.C. § 1154(k)(2) (2006), allows
the respondent to retain his 2A-preference status after his mother naturalized.
III. APPELLATE ARGUMENTS
The respondent argues that the outcome of the Immigration Judge’s decision
is fundamentally unfair and violates congressional intent because it resulted
in his being placed in a less advantageous preference category upon his
mother’s naturalization. According to the respondent, if his mother had not
naturalized, the CSPA would have allowed him to maintain his classification
as an alien accorded 2A-preference status long enough beyond his 21st
birthday for his priority date to become current. He claims that he should
be permitted to “opt out” of automatic conversion to the first-preference
category, which, for him, is a less beneficial preference category. Although
aliens in the first-preference category have traditionally enjoyed shorter wait
times for a visa to become available than aliens in other preference categories,
that category is currently more oversubscribed than the 2A-preference
category, particularly for certain countries. Before the Immigration Judge, the
respondent also argued that he is eligible to adjust his status as an immediate
relative, that is, as the child of a United States citizen, by applying the formula
in section 203(h)(1) of the Act to his age on the date of his mother’s
naturalization.Cite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
1 While the issue has not been raised below or by the parties on appeal, we note that the
respondent has yet to demonstrate that he is not barred from relief by section 245(c)(2)
of the Act. However, because we conclude that the respondent does not have a visa
available to him and is thus currently ineligible for relief on that basis, we need not address
this issue.
609
IV. ANALYSIS
We agree with the Immigration Judge that the respondent is currently
ineligible to adjust his status to that of a lawful permanent resident because
an immigrant visa is not immediately available to him.
A. Visa Availability and Adjustment of Status
Under Section 245(a) of the Act
To establish eligibility for adjustment of status under section 245(a) of the
Act, an alien must demonstrate that he has been inspected and admitted
or paroled into the United States; is eligible to receive an immigrant visa and
has a visa immediately available to him; is not statutorily barred from
adjustment; and is admissible to the United States or, if inadmissible,
is eligible for a waiver of inadmissibility. The burden is on the alien
to establish eligibility for adjustment of status. 8 C.F.R. § 1240.8(d) (2011).
The respondent’s statutory eligibility to adjust his status depends, in part,
on whether he has a visa immediately available to him.1
“Immediate
relatives,” who are defined as the parents, spouses, and children of United
States citizens, are not subject to the numerical limits on immigrant visas.
Section 201(b)(2)(A)(i) of the Act. This means that visa availability
is immediate once it has been established that an alien falls within the
“immediate relative” definition. By contrast, aliens in the preference
categories under section 203(a) of the Act, including the children of lawful
permanent residents, are subject to numerical limits on visas. The Department
of State tracks visa availability for these categories on a monthly basis through
its Visa Bulletin. A visa is immediately available when an alien’s priority date
is earlier than the date for the specified preference category shown in the
current Visa Bulletin. 8 C.F.R. §§ 245.1(g)(1), 1245.1(g)(1) (2011).
The respondent is the beneficiary of a visa petition that was filed by his
mother when he was under 21 years of age and she was a lawful permanent
resident. Approval of the visa petition accorded him 2A-preference status with
a priority date of August 5, 2004. Before his priority date became current, theCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
2 The Act defines a “child” as an unmarried person under 21 years of age. Section 101(b)(1)
of the Act, 8 U.S.C. § 1101(b)(1) (2006).
610
respondent turned 21. Subsequently, his mother naturalized. His priority date
as a Mexican alien in the 2A-preference category became current
in April 2010. However, his priority date is several years from being current
in every other preference category, including the first-preference category.
The respondent has therefore argued that a visa is immediately available to him
as either (1) an immediate relative, or (2) an alien with 2A-preference status.
B. Immediate Relative Status and Section 201(f)(2) of the Act
The CSPA amended the Act to provide “age-out” protection
to beneficiaries who were “children” at the time a visa petition was filed
on their behalf, but who turned 21 before their petitions were ultimately
processed.2
See Matter of Wang, 25 I&N Dec. 28, 31 (BIA 2009). Section 2
of the CSPA, 116 Stat. at 927, which is codified at section 201(f) of the Act,
provides that an alien’s age is generally determined as of the date on which
a visa petition to classify him as an immediate relative is filed. Thus, under
section 201(f)(1), if the child of a United States citizen is under 21 when a visa
petition is filed, he retains his classification as an immediate relative even after
turning 21.
However, this provision is not applicable to the child of a lawful permanent
resident who has filed a visa petition according the child 2A-preference status
and who subsequently naturalizes. In that case, the determination of the
child’s age is governed by section 201(f)(2) of the Act, which states:
In the case of a petition under section 204 initially filed for an alien child’s
classification as a family-sponsored immigrant under section 203(a)(2)(A), based
on the child’s parent being lawfully admitted for permanent residence, if the petition
is later converted, due to the naturalization of the parent, to a petition to classify the
alien as an immediate relative . . . the determination [whether the alien qualifies
as a “child”] shall be made using the age of the alien on the date of the parent’s
naturalization.
(Emphasis added.) Thus, under section 201(f)(2) of the Act, the child’s
age on the date of his or her parent’s naturalization is controlling for
purposes of determining immediate relative status. Because the respondentCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
3 The I-130 visa petition filed on behalf of the respondent was pending for over 900 days
before approval.
4
Section 203(h)(1) of the Act provides, in pertinent part, as follows:
For purposes of [calculating the adjusted age of aliens in the 2A-preference
category and derivative beneficiaries], a determination of whether an alien [qualifies
as a “child”] shall be made using—
(A) the age of the alien on the date on which an immigrant visa number
becomes available for such alien . . . , but only if the alien has sought to acquire
the status of an alien lawfully admitted for permanent residence within one year
of such availability; reduced by
(B) the number of days in the period during which the applicable petition . . .
was pending.
611
was 22 years old on July 24, 2009, the date of his mother’s naturalization,
he is not a “child” of a United States citizen and is unable to adjust his status
as an immediate relative.
In his motion to terminate before the Immigration Judge, the
respondent argued that the CSPA allows him to subtract the number of days
his visa petition was pending from his biological age on the date his
mother naturalized, thereby qualifying him as a “child” for purposes of
classification as an immediate relative under section 201(b)(2)(A)(i) of the
Act.3 Section 3 of the CSPA, 116 Stat. at 928, which is codified at section
203(h)(1) of the Act, allows aliens in the 2A-preference category and
derivative beneficiaries to preserve their “child” status for a period beyond
their 21st birthday by subtracting the period of time a visa petition was
pending approval from their age on the date a visa number became available.4
To take advantage of section 203(h)(1), an alien must seek to acquire lawful
permanent resident status within 1 year of visa availability. Section
203(h)(1)(A) of the Act.
Section 203(h)(1) of the Act does not, however, apply to determinations
of immediate relative status. By its terms, section 203(h)(1) is limited
to calculating the adjusted age of aliens in the 2A-preference category and
derivative beneficiaries. As discussed above, section 201(f) governs
in determining whether an alien qualifies as an immediate relative, and that
section neither refers to section 203(h)(1) nor contains a comparable formula
for calculating an alien’s adjusted age. Because the respondent was over the
age of 21 on the date of his mother’s naturalization, he is not an immediate
relative under section 201(b)(2)(A)(i) of the Act. See section 201(f)(2) of the
Act.Cite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
612
C. Automatic Conversion Pursuant to 8 C.F.R. § 204.2(i)(3)
Because the respondent does not qualify as an immediate relative, we must
determine which preference category he falls into to ascertain when a visa will
become available to him. By regulation, a visa petition filed by a lawful
permanent resident will automatically convert upon that petitioner’s
naturalization. The applicable regulation provides in pertinent part:
Effective upon the date of the naturalization of a petitioner . . . a currently valid
petition according preference status under section 203(a)(2) of the Act to the
petitioner’s spouse and unmarried children under twenty-one years of age shall
be regarded as having been approved for immediate relative status under section
201(b) of the Act. Similarly, a currently valid petition according preference status
under 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years
of age shall be regarded as having been approved under section 203(a)(1) of the Act.
8 C.F.R. § 204.2(i)(3) (2011) (emphasis added).
The respondent’s mother filed a visa petition on his behalf according him
preference status under section 203(a)(2) of the Act. Before the priority date
for this petition became current, the respondent turned 21, and his mother
subsequently naturalized. Pursuant to 8 C.F.R § 204.2(i)(3), when his mother
naturalized on July 24, 2009, the respondent’s preference status automatically
converted to the first-preference category.
As a first-preference alien from Mexico, the respondent does not
have a visa number immediately available to him. Currently, visa numbers
are available for first-preference aliens from Mexico with priority
dates of March 22, 1993, or earlier. Bureau of Consular Affairs,
U.S. Dep’t of State, Visa Bulletin, Vol. IX, No. 37 (Oct. 2011),
http://travel.state.gov/visa/bulletin/bulletin_1360.html [hereinafter Visa
Bulletin]. The respondent’s priority date is August 5, 2004.
D. Retaining Preference Status Under
Section 203(a)(2)(A) of the Act
Traditionally, the first-preference category has been more “current” than
the 2A-preference category, meaning that visa numbers have been available
more quicklyfor intending immigrants in the first-preference category than for
those in the 2A-preference category with the same priority date. Currently,
however, the first-preference category is more oversubscribed than the
2A-preference category, particularly for aliens from Mexico and theCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
5 This section would have allowed the respondent to subtract approximately 900 days—the
amount of time his visa petition was pending—from his actual age at the time of visa
availability. The respondent’s priority date became current in the 2A-preference category
in April 2010, when he was 23 years old. Applying the formula in section 203(h)(1) of the
Act to determine the respondent’s adjusted age at the time a visa became available to him,
we note that he would be deemed to be 20 years old.
613
Philippines. Accordingly, rather than automatically converting to the
first-preference category, the respondent wishes to retain his 2A-preference
status.
Prior to his mother’s naturalization, the respondent may have been able
to retain his preference classification under section 203(a)(2)(A) of the Act for
a period beyond his 21st birthday by applying the formula in section 203(h)(1)
of the Act.5 However, his priority date as an alien in the 2A-preference
category did not become current until April 2010, after his mother had
naturalized and the petition had automatically converted to one approved for
first-preference classification pursuant to 8 C.F.R. § 204.2(i)(3).
The respondent argues that he should be permitted to “opt out” of
automatic conversion from the 2A-preference category to the first-preference
category upon his mother’s naturalization. While section 6 of the CSPA, 116
Stat. at 929, which is codified at section 204(k) of the Act, allows aliens
to “opt out” of certain automatic conversion provisions, it does not permit
the respondent to retain his 2A-preference status once his mother naturalized.
Section 204(k)(1) of the Act provides that in the case of a petition
“initially filed for an alien unmarried son or daughter’s classification
as a family-sponsored immigrant under section 203(a)(2)(B) [2B-preference
category],” if the lawful permanent resident parent subsequently naturalizes,
the petition will be converted to a first-preference category petition. There
is an exception to this, however. Section 204(k)(2) of the Act allows an alien
to affirmatively opt out of automatic conversion from the 2B-preference
category to the first-preference category by filing “with the Attorney General
a written statement that he or she elects not to have such conversion occur
(or if it has occurred, to have such conversion revoked).” In other words,
an alien wishing to remain in the 2B-preference category may “opt out” of the
automatic conversion by filing a written statement electing not to convert
to the first-preference category.
In a 2006 memorandum, the USCIS clarified that section 204(k)(2) of the
Act also applies to an alien for whom a visa petition was initially filed
to accord him or her 2A-preference status, but who turned 21 and whoseCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
614
petition was automatically converted to one for 2B-preference classification
prior to the petitioner’s naturalization. See Memorandum from Michael Aytes,
Assoc. Dir. of Domestic Operations, to USCIS officials (June 14, 2006),
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/A
rchives%201998-2008/2006/cspa6andv061406.pdf (clarifying the aging out
provisions as they affect preference relatives and immediate family members
under the Child Status Protection Act).
Thus, at the time of his mother’s naturalization, the respondent could have
“opted out” of having his visa petition automatically convert from one for
2B-preference classification to one for first-preference classification. This
would not, however, make a visa immediately available to the respondent.
Currently, visa numbers are only available for aliens from Mexico in the
2B-preference category with priority dates of November 22, 1992, or earlier.
See Visa Bulletin, supra.
Neither section 204(k)(2) of the Act nor the USCIS memorandum allows
an alien to elect to remain in the 2A-preference category upon the petitioner’s
naturalization where the alien is biologically over the age of 21 but would
remain legally a “child” by applying the formula in section 203(h)(1)
of the Act. In enacting section 204(k)(2), Congress was attempting to “fix[ ]
a troubling anomaly in our immigration laws” whereby certain immigrants
were “in effect . . . penalized for becoming citizens.” 148 Cong. Rec.
H4989-01 (daily ed. July 22, 2002) (statement of Rep. Sensenbrenner), 2002
WL 1610632, at *H4991. Specifically, it recognized that, for aliens from
certain countries in which the first-preference category was more
oversubscribed than the 2B-preference category, automatic conversion was
an adverse consequence rather than a benefit, and it remedied this problem by
allowing aliens to affirmatively elect to remain in the 2B-preference category.
Id. However, the CSPA did not resolve a similar “anomaly” that arises
in situations, such as the respondent’s, where a beneficiary is biologically over
21 years of age but may legally retain his or her 2A-preference status for
a short period pursuant to section 203(h)(1), and the petitioner naturalizes
before the beneficiary’s priority date becomes current.
The respondent does not argue that the Immigration Judge misapplied the
current law but rather asserts that the current law is fundamentally unfair
as applied to him, because his mother’s decision to naturalize may have
impeded his ability to immigrate. He contends that had his mother not
naturalized and had the Immigration Judge applied the formula in section
203(h)(1) of the Act to his case, his priority date would now be current
and a visa would be available to him as an alien with 2A-preferenceCite as 25 I&N Dec. 606 (BIA 2011) Interim Decision #3729
615
classification under section 203(a)(2)(A) of the Act. Instead, the conversion
to a first-preference category resulted in a longer wait time for a visa number
to become available. However, we are without authority to rule on the
constitutionality of laws enacted by Congress, and we therefore decline
to address this argument. See Matter of Fuentes-Campos, 21 I&N Dec. 905,
912 (BIA 1997).
V. CONCLUSION
We agree with the Immigration Judge that a visa is not immediately
available to the respondent. Section 201(f)(2) of the Act makes clear
that an alien beneficiary’s biological age on the date of the petitioner’s
naturalization controls when determining whether a beneficiary is an
immediate relative. Because the respondent was 22 years old on the date of his
mother’s naturalization, he does not qualifyas an immediate relative. Pursuant
to 8 C.F.R. § 204.2(i)(3), the petition according him 2A-preference status
under section 203(a)(2) automatically converted to one for first-preference
status when his mother naturalized. His priority date as a first-preference
alien from Mexico is a number of years from being current. While an
alien may opt out of conversion from the 2B-preference category to the
first-preference category, there is no analogous provision allowing an alien to
retain his or her status as a 2A-preference category alien, the only preference
category for which a visa is immediately available to the respondent.
Accordingly, since the respondent is not eligible to adjust his status at this
time, his appeal will be dismissed.
The Immigration Judge granted the respondent the alternate relief
of voluntary departure for a period of 60 days. The Immigration Judge did not,
however, condition the grant of voluntary departure on the posting of a bond,
as required by section 240B(b)(3) of the Act, 8 U.S.C. § 1229c(b)(3) (2006).
Therefore, the record will be remanded to the Immigration Judge for the
purpose of granting a new period of voluntary departure, conditioned on the
posting of a bond, and providing the required advisals. See 8 C.F.R.
§ 1240.26(c)(3) (2011); see also Matter of Gamero, 25 I&N Dec. 164 (BIA
2010).
ORDER: The appeal is dismissed.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.