Recent Court Decision Provides Hope
August 20, 2008
The 9th Circuit Court of Appeals, which has jurisdiction over the states of California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, and Hawaii, recently issued a court decision that provides a glimmer of hope against the immigration service’s harsh interpretations and application of the immigration laws.
In Choin v. Mukasey, which was decided on August 12, 2008, the Court ruled that the focus of the laws determining eligibility for adjustment of status to lawful permanent residency is whether an individual entered into a good faith and legitimate marriage, and not the durational length of the individual’s marriage.
The court case involves a Russian female who entered the US with her two children pursuant to K fiancée visas. As required of all those who enter the US as a fiancée, Ms. Choin married her sponsoring US Citizen fiancée within 90 days of her entry into the US. She thereafter filed for adjustment of status to lawful permanent residency based on the marriage. For no reason other than the lengthy processing delays by the US Citizenship and Immigration Service (CIS), Ms. Choin’s application for adjustment of status remained pending more than almost 2 years after the time she had filed it. Unfortunately, the marriage between Ms. Choin and her husband deteriorated and they divorced before a decision could be made on the adjustment application. The CIS therefore denied the adjustment application due to their divorce.
The CIS then initiated removal proceedings against Ms. Choin. The immigration judge sided with the CIS and ordered Ms. Choin removed from the US. Ms. Choin appealed the immigration judge’s decision to the Board of Immigration Appeals (BIA), who agreed with the CIS and the immigration judge that Ms. Choin is not eligible for adjustment of status since the marriage had already been terminated.
Ms. Choin then appealed to the 9th Circuit Court of Appeals, who miraculously agreed with Ms. Choin that she continues to be eligible for adjustment of status despite the termination of her marriage. The Court’s decision points out that the rationale of the laws pertaining to fiancées is to ensure that parties are entering into a legitimate marriage under good faith, and not for the purpose of obtaining a visa. The Court therefore concludes that there is “…nothing in the plain language of §245(d) [which is the immigration section pertaining to fiancées] suggesting that an application that was valid when submitted should be automatically invalid when the petitioner’s marriage ends by divorce two years later. The purpose and context of §245(d) also do not support the government’s reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency’s file cabinet.”
The Court has sent the case back to the BIA so that it may issue a decision consistent with the Court’s interpretation of the law. It has yet to be seen how the immigration service will apply this new court case. However, the obvious rebuke by the Court of the immigration service’s interpretations and application of the law, as well as their prolonged delays in the processing of applications, is a glimmer of hope that perhaps there may be some justice ahead for the immigrant community.
Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts.
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