Fed Appeals Court in St. Louis Denies Lawful Status to Man Who Claimed Prior Grant of Status Should Prevent Deportation

In 1986, a Jordanian citizen, entered the United States on a student visa. He married a legal permanent resident and his wife filed an I–130 petition, verifying their qualifying family relationship. The man also filed an I–485 petition for permanent residency. The Immigration and Naturalization Service granted the 1986 petitions, adjusting his status to conditional permanent resident. INS later terminated this status because the man left the U.S. and never filed to remove the conditions on his green card.

In 1992, the man’s mother, then a legal permanent resident, filed an I–130 petition on his behalf. The INS denied the petition because the man was married. Mansour and his wife divorced later that year.

In 1999, the man’s mother filed another I–130 petition on his behalf. The INS approved the petition in 2000, authorizing him to return to the United States and remain until 2005. The man returned on a non-immigrant visa, but remained past the 2005 deadline (without renewing it or adjusting his status).

In 2007, the man filed an I–485 petition, again seeking to adjust his status to legal permanent resident. Because he had not maintained a non-immigrant visa since 2005, he was ineligible for adjustment under INA § 245(a)—which permits adjustment of status for aliens who enter the United States under inspection or parole and, as applicable here, maintain lawful non-immigrant status.

Instead, the man sought adjustment under § 245(i)—which permits adjustment of status for aliens ineligible under § 245(a) or disqualified under § 245(c). Although § 245(i) expired in 2001, a grandfather provision preserved the right to adjust status under § 245(i) for certain aliens: the alien must have been the beneficiary of a qualifying immigrant visa petition (e.g., I–130 petition) filed on or before April 30, 2001; and, the petition must have been “approvable when filed” (i.e., “properly filed, meritorious in fact, and non-frivolous”).

U.S. Citizenship and Immigration Services (INS’s successor) denied the petition, finding the man ineligible for grandfathering based on any of his three I–130 petitions. As relevant to this appeal, the USCIS determined the Jordanian man could not rely on his 1986 petition because “an application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment of status or admission as an immigrant.”

Removal (deportation) proceedings began.  The man renewed his petition for adjustment of status, which was denied by the immigration judge who found that the earlier granted I-130 had been “extinguished” because he had already used that petition to obtain the conditional resident status.

On appeal to the Board of Immigration Appeals (BIA), the Board held that the regulation regarding grandfathering was vague as it only addressed qualifying petitions that were later “withdrawn, denied or revoked.”  It did not address cases where a petition was approved.  Because it was vague, the proper approach was to look at USCIS’s interpretation of the rule.

In 2005, the Department of Homeland Security had issued a memo which directs that “USCIS no longer considers an alien grandfathered once the alien is granted adjustment of status under section 245(i) because the alien has acquired the only intended benefit of grandfathering: LPR status.”  The Board used this memo to deny grandfathering to the Jordanian man and the Eighth Circuit recently upheld that decision.