Mom adjusts status but can’t adjust daughter
On June 6, 2016, the Third Circuit Court of Appeals issued a 43-page precedential decision striking down the regulation that precluded our client from adjusting status.
Our client’s mother was married to a United States citizen when our client was over 18 but under 21. Her mother came as a K-3 non-immigrant and our client entered the United States as a K-4. Our client’s mother was able to adjust her status. However, although our client was legally admitted as a K-4 non-immigrant to join her mother, she was not permitted to adjust status. Her application was denied because the applicable regulation requires that all K-4s adjust status through being a “child” of their USC stepparent and our client could not adjust status through this route because she did not qualify as the “child” of her stepfather under the law since the relationship did was not established prior to her 18th birthday. We argued that she was eligible to adjust status either like K-2s (who can file for adjustment without a separate visa petition) or as the “child” of the K-3, who in this case was her mother.
The case had a long procedural history. After the adjustment of status denial, we took over the case and filed a federal complaint in the United States District Court in New Jersey. However, the case was dismissed after our client was placed in removal proceedings as a result of being out of status. This was done by immigration as a way to keep us out of federal court. We did not stop fighting.
Case was heard
The removal case was heard before an Immigration Judge in Newark, NJ. Due to an adverse precedent decision on the same issue by the Board of Immigration Appeals (Matter of Akram) and the fact that an Immigration Judge cannot find a regulation invalid, we knew we would have to take this up to the Third Circuit. Therefore, we set up the case knowing we would one day be arguing the legal issues in the Third Circuit Court of Appeals. Relying on Matter of Akram, a precedent decision on the same issue, the Immigration Judge and Board of Immigration Appeals found our client ineligible to adjust status because she entered on a K-4 visa and the stepparent relationship was established after her 18th birthday.
We filed a petition for review with the Third Circuit. Mr. Scott Bratton prepared and filed very detailed briefs setting forth why the regulation is invalid. Mr. Bratton went step-by-step through the legislative history of K visas and analyzed the pertinent statutes and regulations. The case was then set for oral argument in October 2015. Mr. Bratton spent days preparing for argument since the case was extremely complex and involved the interplay of various statutes and regulations. At argument, each side was asked tough questions. The case was taken under advisement.
On June 6, 2016, we received the good news that our petition for review was granted. The Third Circuit found the regulation relied upon by USCIS, the IJ, and BIA was invalid. The regulation made it impossible for someone in our client’s position to adjust status (since she was over 18 at the time of her mother’s marriage). The Third Circuit agreed with us that the regulation departs from the plain language of the statute, contravenes Congressional intent, and exceeds the scope of the Attorney General’s authority. The case was remanded to allow DHS and the Attorney General to provide a mechanism to allow for someone in our client’s position to adjust status.
This was a huge victory for our client. The agency must now provide a mechanism that would allow her to obtain lawful permanent resident status.
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