Cite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
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Matter of O. VAZQUEZ, Respondent
Decided June 8, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Act,
8 U.S.C. § 1153(h)(1)(A) (2006), by filing an application for adjustment of status or
by showing that there are other extraordinary circumstances in the case, particularly those
where the failure to timely file was due to circumstances beyond the alien’s control.
FOR RESPONDENT: Jose Bernardo Lovo, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Margot Merrill-Johnson,
Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MANN, Board Members.
MALPHRUS, Board Member:
In a decision dated September 15, 2008, an Immigration Judge found the
respondent inadmissible under section 212(a)(6)(A)(i) of the Immigration and
NationalityAct, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), and denied his application
for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i)
(2006). The respondent has appealed from that decision. The Department
of Homeland Security (“DHS”) has filed a brief in opposition. The appeal will
be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 28-year-old native and citizen of Mexico.
On September 9, 1996, his father filed a Form I-130 (Petition for Alien
Relative) on behalf of his mother, of which the respondent was a derivative
beneficiary. The visa petition was approved on November 18, 1996, and
an immigrant visa number became available to the respondent on March 1,
2004. Over a year later, on October 14, 2005, when he was 21 years and
9 months of age, the respondent first filed his Form I-485 (Application
to Register Permanent Residence or Adjust Status) with the U.S. Citizenship
and Immigration Services (“USCIS”).Cite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
1
Section 203(h)(1) of the Act provides, in pertinent part, as follows:
Rules for Determining Whether Certain Aliens Are Children
(1) In general
For purposes of [qualified immigrants or children following to join],
a determination of whether an alien satisfies the age requirement [to qualify as a child
under section 101(b)(1) of the Act] shall be made using—
(A) the age of the alien on . . . the date on which an immigrant visa number
became available for the alien’s parent[], 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 . . . .
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The respondent’s application for adjustment of status was initially denied
by the USCIS on the basis of an undisclosed criminal conviction. The
respondent sought reopening, and on July 25, 2007, the USCIS denied the
application on the ground that the respondent had “aged out” of his derivative
beneficiary status. The USCIS concluded that the respondent was not eligible
for the ameliorative provisions of the Child Status Protection Act, Pub. L. No.
107-208, 116 Stat. 927 (2002) (“CSPA”), because he did not file his
application for adjustment of status within 1 year of the visa number becoming
available and therefore had not “sought to acquire” lawful permanent resident
status within a year of visa availability, as required by section 203(h)(1)(A)
of the Act, 8 U.S.C. § 1153(h)(1)(A) (2006).1
The respondent was placed in removal proceedings and was charged
as an alien who was present in the United States without being admitted
or paroled. At a hearing before the Immigration Judge, he conceded
removability and applied for adjustment of status, arguing that he sought
to acquire permanent residence within 1 year of the visa number becoming
available because his parents consulted with a notario about filing
an application within that period. Concluding that the phrase “sought
to acquire” means an actual filing with the USCIS, the Immigration Judge
denied the respondent’s application for adjustment and ordered him removed
to Mexico.
II. ANALYSIS
Section 203(h)(1)(A) of the Act, which was enacted as part of the CSPA,
provides a mechanism for an applicant who has aged out to nevertheless
maintain the status of a “child” under the Act. An applicant can take
advantage of the age calculation mechanism in this section “but only if the
alien has sought to acquire the status of an alien lawfully admitted forCite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
2
Form DS-260 is the online version of the immigrant visa application.
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permanent residence within one year of . . . availability” of an immigrant visa
number. Section 203(h)(1)(A) of the Act (emphasis added).
In interpreting the phrase “sought to acquire,” we must first determine
whether it has a plain and unambiguous meaning. See Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997) (“Our first step in interpreting a statute
is to determine whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.”). Analyzing
whether language is plain and unambiguous is “determined by reference to the
language itself, the specific context in which that language is used, and the
broader context of the statute as a whole.” Id. at 341. Even when considered
in light of the statutory context, the phrase “sought to acquire” does not have
a plain and unambiguous meaning. It is sui generis in the Act and is not
a legal term of art in applicable regulations or administrative or judicial
decisions. However, the context of this statutory provision does explain why
Congress may have chosen to employ an ambiguous term.
The respondent contends that the plain meaning of “sought to acquire”
must encompass a range of actions broader than “filing” an application for
adjustment of status because Congress could simply have used the term
“filed,” as it has in other sections in the Act. See, e.g., sections 208(a)(2)(B),
245(a) of the Act, 8 U.S.C. §§ 1158(a)(2)(B), 1255(a) (2006). This argument,
viewed in isolation, has significant force. However, we agree with the DHS
that the flaw in this approach is that section 203(h) applies to the DHS and the
Department of State (“DOS”), both of which adjudicate requests for immigrant
status.
Generally speaking, the DOS (through its consular service) adjudicates
applications for immigrant visas from outside the United States, whereas the
DHS (through the USCIS) adjudicates requests for adjustment of status from
within the country. Thus, in drafting the CSPA, Congress needed to use
language that would cover the different processes employed by the DOS and
the DHS. The word “filed” is not the term ordinarily employed by the DOS
to refer to initiation of the visa application process. Rather, the DOS
regulations use the term “submit” when referring to a Form DS-230
(Application for Immigrant Visa and Alien Registration). See 22 C.F.R.
§ 42.63 (2012). This regulation obligates the consular officer to “ensure that
Form DS-230 or Form DS-260 and all other forms an alien is required
to submit are fully and properly completed in accordance with the applicable
regulations and instructions.” 22 C.F.R. § 42.63(b) (emphasis added).2Cite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
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Likewise, 22 C.F.R. § 42.63(c) requires the “submission of additional
information” by the applicant when the consular officer deems it necessary.
(Emphasis added.)
This is not to suggest that the DOS exclusively uses the term “submit”
(or a variation of that word) in its regulations or that it does not use the term
“filed” at all. The DOS does use the term “filing” in a regulation discussing
registration. See 22 C.F.R. § 42.67(b) (“The alien shall be considered
to be registered for the purposes of INA 221(b) and 203(g) upon the filing
of Form DS-230 or Form DS-260, when duly executed, or the transmission
by the Department to the alien of a notification of the availability
of an immigrant visa, whichever occurs first.” (emphasis added)). Notably,
this use of the term “filing” attaches to events relatively late in the process
of acquiring an immigrant visa—well after the “submission” referred
to in 22 C.F.R. § 42.63. Indeed, the DOS’s use of the term “filing” made
it difficult to use that word in section 203(h)(1)(A) of the Act without the risk
of requiring an alien to wait until the end of the application process
to essentially stop the 1-year clock under the CSPA.
Because of the differences in usage between the DOS and DHS
regulations, it was reasonable for Congress to avoid using the word “filed”
in section 203(h)(1)(A) of the Act. This different terminology further supports
our conclusion that the term “sought to acquire” is ambiguous. We must
therefore apply a reasonable interpretation of that language. See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984);
see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005) (“[A]mbiguities in statutes within an agency’s jurisdiction
to administer are delegations of authority to the agency to fill the statutory gap
in reasonable fashion. Filling these gaps . . . involves difficult policy choices
that agencies are better equipped to make than courts.”).
To reasonably interpret the meaning of the phrase “sought to acquire,”
we must look at section 203(h)(1)(A) of the Act in its entirety. See K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). A key phrase of this section
establishes the amount of time afforded to the alien to take advantage
of “age-out” protection. Congress provided that an alien would have 1 year
from the date of visa availability to qualify. In our view, this is a significant
amount of time during which an alien can obtain legal assistance, acquire
necessary documentation, and execute the appropriate forms. Since Congress
has afforded aliens a full year, rather than a mere 30 or 60 days, to take
advantage of the age-out rule, it is reasonable to expect the proper filing
of an application, when it comes to DHS cases, as a way to unquestionably
satisfy the “sought to acquire” element under section 203(h)(1)(A) of the Act.
This interpretation of the statute comports with the meaning of the words
“sought” and “acquire.” Obviously, filing an application for adjustmentCite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
3 We find support for such an “extraordinary circumstances” standard from the provisions
of the Act governing the issuance of immigrant visas. Under section 203(g) of the Act,
an alien generally must apply for an immigrant visa within 1 year of State Department
notification of the availability of a visa to prevent termination of the visa. However, there
is an exception to termination if the alien can show, within 2 years of notification, that his
or her “failure to apply was due to circumstances beyond the alien’s control.” Section
203(g) of the Act. While the DOS consular process and the DHS adjustment process differ,
there are similarities between them. For example, as a general rule an alien applying for
an immigrant visa through consular processing or one seeking to maintain his or her child
status under the CSPA (whether through the DOS or the DHS) has 1 year to apply. Sound
policy reasons support encouraging compliance with a 1-year period for both the DOS visa
issuing process and the CSPA’s procedures for maintaining one’s status as a “child.” In the
former case, unused visas can be recaptured and reallocated to others awaiting such visas;
in the latter, those who seek the ameliorative effects of the CSPA are encouraged to act with
reasonable diligence to maintain the benefit of a “child” status.
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of status is a critical step that may allow one, if otherwise found to be eligible,
to “acquire” lawful permanent resident status on the basis of an available
immigrant visa. Interpreting the statute in this manner also “promotes
consistency and predictability, which are important principles in immigration
law.” Matter of C-T-L-, 25 I&N Dec. 341, 347 (BIA 2010).
While the proper filing of an application for adjustment of status clearly
meets the “sought to acquire” provision in section 203(h)(1)(A) of the Act, the
statute may also be satisfied by other actions that fall short of filing. An alien
may satisfy the “sought to acquire” requirement by presenting evidence that
persuasively establishes that he or she submitted an application to the
appropriate agencywithin the DHS in the manner that the application provides,
but it was rejected for a procedural or technical reason, such as the
absence of a signature. We note that in the context of asylum applications,
if an application was filed prior to the expiration of the 1-year deadline but was
rejected and returned as not properly filed, the applicant’s subsequent failure
to meet the deadline may be excused if the corrected application is filed within
a reasonable period after its return. See 8 C.F.R. § 1208.4(a)(5)(v) (2012).
An application for adjustment would be considered timely filed for purposes
of section 203(h)(1)(A) of the Act in similar circumstances.
Moreover, an alien might also satisfy the “sought to acquire” provision
by showing that there are other extraordinary circumstances in the case,
particularly those where the failure to timely file was due to circumstances
beyond the alien’s control.3
In that regard, an alien may be able to show that
he or she paid an attorney to assist in filing a timely adjustment application and
completed and executed the application with the attorney’s aid prior to the
deadline, but the attorney then failed to take the ministerial step of timely filing
the application with the appropriate agency, thereby effectively preventing theCite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
4 Tovar v. U.S. Attorney General, 646 F.3d 1300, is not binding in this case, which arises
in the jurisdiction of the Fifth Circuit. Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).
5
In any event, we are not bound by our decisions that have not been designated as Board
precedents. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991); see also
Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011); 8 C.F.R. § 1003.1(g) (2012).
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alien from filing. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),
aff’d, 857 F.2d 10 (1st Cir. 1988); see also Mai v. Gonzales, 473 F.3d 162,
165 (5th Cir. 2006).
However, actions that do not approximate the filing of an application
or extraordinary circumstances, such as contacting an attorney about initiating
the process for obtaining a visa that has become available, are insufficient
to meet the requirements of section 203(h)(1)(A) of the Act. The alternative
suggested by the respondent, that the deadline could be satisfied by simply
contacting an organization or an attorney for legal advice, is impractical and
leaves open manyquestions, including how substantive the contact would need
to be and what level of proof would need to be provided regarding
such contact. See Negusie v. Holder, 555 U.S. 511, 524 (2009) (stating that
the Board’s development of a reasoned interpretation may be “influenced
by how practical, or impractical, the standard would be in terms of its
application to specific cases”).
Recently, the United States Court of Appeals for the Eleventh Circuit stated
that the phrase “sought to acquire” does not require that an alien actually file
or submit an application but rather can encompass “substantial steps taken
toward the filing of the application for permanent residency . . . within the one
year period.” Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1302, 1305 (11th Cir.
2011).4
In its analysis of section 203(h)(1)(A) of the Act, the Eleventh Circuit
discussed three unpublished Board decisions that applied a broad interpretation
of the phrase “sought to acquire.” Id. at 1303-05.
However, the Eleventh Circuit did not reference other unpublished
Board decisions that interpreted “sought to acquire” more restrictively.5
Moreover, neither Tovar nor the unpublished Board decisions it cited
considered the central, and in our view convincing, argument discussed above:
that the inherent vagueness of the phrase “sought to acquire” reflects that
section 203(h)(1) of the Act applies to the processing of applications by two
separate agencies, which use different nomenclatures.
In any event, the Eleventh Circuit ultimately held that the alien’s mere
requests for a visa and for reinstatement of a visa registration with the
Department of State through the National Visa Center (“NVC”) did not
constitute even a substantial step toward the filing of an application for
permanent residence. Tovar v. U.S. Att’y Gen., 646 F.3d at 1305. In that case,
the alien did not make any effort to file an adjustment application in a timelyCite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
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manner or return to Mexico to pursue consular processing of his immigrant
visa. He also did not claim that he was prevented from filing by circumstances
beyond his control. Instead, the alien only contacted the NVC to request that
his visa petition not be terminated. In fact, the respondent then waited 3 years
from the date the visa number became available to file an adjustment
application. Although we respectfully do not agree that “substantial steps”
is the proper standard and do not adopt all of the Eleventh Circuit’s reasoning
and analysis, we would reach the same result given the facts of that case.
In summary, we conclude that an alien may satisfy the “sought to acquire”
provision of section 203(h)(1)(A) of the Act by properly filing the application
for adjustment of status with the DHS. Additionally, the alien may meet the
requirement by establishing, through persuasive evidence, that an application
he or she submitted to the appropriate agency was rejected for a procedural
or technical reason or that there were other extraordinary circumstances,
particularly those where the failure to timely file was due to circumstances
beyond the alien’s control. The respondent, through his father, merely sought
legal advice and did not actually file his adjustment application within 1 year
of visa availability. We conclude that he did not satisfy the “sought
to acquire” requirement of section 203(h)(1)(A) of the Act and thus is not
eligible to adjust his status to that of a lawful permanent resident
as a derivative beneficiary. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.