BIA Makes Procedural Exception to the One Year, Thus Expanding the Meaning on Child Status Protection Act
By: Margarita Baldwin*
In a recent case by BIA, Matter of O. Vazquez, 25 I &N Dec. 817 (BIA 2012) the Board explained the “sought to acquire” provision of section 203(h)(1)(A) of INA, 8U.S.C. § 1153(h)(1)(A) (2006), which is a part of Child Status Protection Act (CSPA), Pub. L. No. 107-208 (Aug.6, 2002). The provision allows an “aged out” applicant to maintain the status of a “child” for the purpose of adjustment of status. However, the “child” status will be preserved only when the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of. . . availability” of an immigrant visa number. An alien can also show that there were other extraordinary, beyond the alien’s control, circumstances that prevented timely filing whereas previously the one year was a bar to eligibility.
The respondent is a 28-year-old native and citizen of Mexico. On September 9, 1996, his father filed I-130 on behalf of respondent’s mother and the I-30 got approved. The immigrant visa number became available on March 1, 2004. Over a year later when the respondent was over 21 years of age, he filed I-485 which was denied due to his undisclosed criminal conviction. He sought reopening in2007, but it was denied based on the fact that he “aged out.” The respondent was put in removal proceedings. His I-485 filed with Immigration Court was denied, and he was ordered removed to Mexico which he appealed.
The question before the Board I whether the respondent observed the “sought to acquire” provision. First of all, the language at issue is not plain and unambiguous. See Robinson v. Shell Oil Co., 519 U.S. 337,340 (1997). The respondent argues that the meaning of “sought to acquire” is broader than just filing of an application. The Board agrees. However, the Board offers its own interpretation. The section 203(h)(1)(A) provides that an alien would have 1year “age-out protection” from the date of visa availability to qualify. Obviously, proper filing of an application for adjustment meets the provision. The provision may also be satisfied by “substantial steps” that fall short of filing“ within the one year period.
For example, one may present evidence that he or she submitted an application to the DHS, but it was rejected for a procedural or technical reason (absence of a signature). Another example is when the attorney paid to assist with filing of the application failed to timely file it. Basically the applicant has to establish through persuasive evidence that an application submitted was rejected for a procedural reason or there were other circumstances that caused the failure to timely file due to circumstances beyond the alien’s control.
Yet, the respondent in the given case barely sought legal advice and did not file his adjustment application within the year while visa was available. Therefore, he did not satisfy the “sought to acquire” requirement and he was not eligible to adjust his status as a derivative beneficiary.
*Margarita Baldwin is a legal intern at Beach-Oswald Immigration Law Associates, P.C.