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Bloggings: BIA Makes Procedural Exception to the One Year, Thus Expanding the Meaning on Child Status Protection Act, By: Danielle Beach

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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.

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