Cite as 28 I&N Dec. 659 (BIA 2022) Interim Decision #4055 Matter of Policarpo TRIANA, Respondent Decided December 1, 2022 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals When determining whether a respondent is grandfathered for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2018), a decision of the United States Citizenship and Immigration Services (“USCIS”) to approve a visa petition filed on or before April 30, 2001, does not foreclose an Immigration Judge from determining in removal proceedings whether that petition was “approvable when filed” within the meaning of 8 C.F.R. § 1245.10(a)(1)(i) (2021). FOR THE RESPONDENT: Michael Christian Urbina-Pabon, Esquire, Kennesaw, Georgia FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew J. Hewitt, Assistant Chief Counsel BEFORE: Board Panel: GREER, GOODWIN, and GORMAN, Appellate Immigration Judges. GOODWIN, Appellate Immigration Judge: This case was last before this Board on June 25, 2020, when we dismissed the respondent’s appeal of the Immigration Judge’s April 18, 2018, decision denying his applications for adjustment of status under section 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i) (2018), and cancellation of removal for certain nonpermanent residents under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1) (2018). This case is presently before us pursuant to a January 22, 2021, order from the United States Court of Appeals for the Eleventh Circuit granting the Government’s unopposed motion to remand. The appeal will again be dismissed. I. FACTUAL AND PROCEDURAL HISTORY The following facts are undisputed. The respondent is a native and citizen of Mexico. He married his wife in 1989. More than 8 years after the marriage, his wife’s lawful permanent resident father filed a Form I-130, Petition for Alien Relative, on her behalf, wrongly claiming that she was an unmarried daughter of a lawful permanent resident. See INA § 203(a)(2)(B), 8 U.S.C. § 1153(a)(2)(B) (1994). The petition was approved by the former 659 Cite as 28 I&N Dec. 659 (BIA 2022) Interim Decision #4055 Immigration and Naturalization Service (“INS”) 1 on October 29, 1998, and the respondent’s wife became the beneficiary of an approved second preference visa petition as an unmarried daughter of a lawful permanent resident. 2 There is no visa category for a married daughter of a lawful permanent resident. See INA § 203(a)(3), 8 U.S.C. § 1153(a)(3) (providing a visa category for married sons and daughters of citizens). In removal proceedings, the respondent applied for cancellation of removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1), and adjustment of status under section 245(i)(1) of the INA, 8 U.S.C. § 1255(i)(1), claiming that he was grandfathered through his wife’s approved petition filed by her father in 1997. The Immigration Judge denied the respondent’s applications, and the respondent appealed to the Board. We held that, to be grandfathered based on his wife’s prior visa petition, the respondent must show that this petition was properly filed with the Attorney General on or before April …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals