AOS 245(c)(2) Issues After Asylum Referral to Immigration Court
Section 245(c)(2) of the Immigration and Nationality Act bars most aliens who have “failed (other than through no fault of [their] own or for technical reasons) to maintain continuously a lawful status since entry into the United States” from adjusting their status. In this article, we will key in on the exception to the 245(c)(2) bar which provides that the bar shall not apply in cases where the alien only failed to continuously maintain lawful status “through no fault of his or her own or for technical reasons.”
In this article, we will examine the effect of an asylum application on the INA 245(c)(2) bar. With limited exceptions, an alien is required to apply for asylum within one year of his or her entry. Although any alien can apply for asylum, including those who were not lawfully admitted or paroled, many asylum applicants apply after being inspected and admitted or paroled in some lawful status. However, the specific issue with which we are concerned involves aliens who apply for asylum in the following circumstance:
1. Alien is inspected and admitted or paroled, thus fulfilling the first general requirement for adjustment of status set forth in INA 245(a)
2. Alien applies for asylum while maintaining lawful status
3. USCIS declines to grant asylum after the alien's lawful period of stay expired
4. The alien seeks to apply for adjustment of status under INA 245(a) in a category which is subject to INA 245(c)(2)
Thus, once the USCIS declines to grant asylum in this scenario, the alien can no longer be said to have continuously maintained lawful status since his or her admission. But recall that 245(c)(2) does provide that the bar shall not apply in cases where the alien only failed to maintain status through no fault of his or her own or for technical reasons. Does the scenario we described above fall under either exception?
(Note that were the alien to have continuously maintained his or her underlying status during the entire pendency of the USCIS's consideration of the asylum application, thus meaning the alien was still in status at the time the USCIS declined to grant asylum, there would be no INA 245(c)(2) issue.)
As we will examine, the Board of Immigration Appeals has held that an asylum application does not fall under the “no fault” or “technical” exceptions to INA 245(c)(2).
Cases where INA 245(c)(2) bar does not apply
Before continuing, we must note that certain classes of adjustment applicants are entirely exempt from INA 245(c)(2). These applicants do not require an exception from the bar because the bar does not apply to them. By extension, the points that we will discuss in this article do not apply to the following classes of adjustment applicants:
Immediate relatives (spouse, unmarried children under 21, parents of U.S. citizen older than 21, and certain widowers and fiancé(e)s or children of a fiancé(e)s in certain cases)
VAWA-based adjustment applicants [see article]
Certain physicians and their accompanying spouses and children (see INA 101(a)(27)(H))
Certain G4 international organization employees [see article], NATO-6 employees, and their family members
Special immigrant juveniles [see article]
Certain members of the U.S. armed forces and their spouses and children (INA 101(a)(27)(K))
Moreover, there are specific, limited exceptions in certain employment-based cases, but those are separate from the general exception at issue in this article and thus beyond our scope.
Returning to the topic of this article, we will highlight an asylum-related INA 245(c)(2) issue where the 245(c)(2) bar would not apply. An alien enters the United States as a B2 nonimmigrant visitor. He applies for asylum. The USCIS declines to grant asylum after the alien's B2 status expired. However, the alien marries a U.S. citizen who files a Form I-130 on his behalf and the Form I-130 is approved. In this case, the alien could be granted adjustment based on the approved Form I-130 because adjustment applications based on immediate relative petitions are not subject to INA 245(c)(2).
Understanding Matter of L-K-
The Board issued an important precedent decision dealing with INA 245(c)(2) in the case of an alien whose period of authorized stay expired during the pendency of her asylum application. See Matter of L-K-, 23 I&N Dec. 677 (BIA 2004) [PDF version]. Below, we will describe the factual scenario that the Board was considering:
Respondent entered the United States as a nonimmigrant visitor in March 1993
Respondent was authorized to remain in the United States until September 25, 1993
Respondent applied for asylum on August 27, 1993, after having continuously maintained B2 status subsequent to her asylum application
Respondent remained in the United States beyond September 25, 1993, while her asylum application was being considered by the USCIS
The USCIS declined to grant the asylum application on January 28, 1997, and referred the respondent to immigration court with the issuance of an Order to Show Cause on January 29, 1997
While in removal proceedings, the respondent received a notice that she had been approved to receive a diversity visa in the 2002 diversity visa lottery
Respondent applied for adjustment of status under diversity lottery provisions and the immigration judge granted adjustment over the objections of the DHS, which argued that she was ineligible for adjustment under INA 245(c)(2)
We have a perfect storm of events. The respondent had been lawfully admitted in B2 status. She applied for asylum while maintaining B2 status. The USCIS declined to grant asylum years after her status lapsed, which resulted in her being placed in removal proceedings for having remained in the United States longer than permitted. Finally, her adjustment application was filed under diversity lottery provisions, thus meaning it was subject to the INA 245(c)(2) bar. INA 245(c)(2) was at issue because the respondent had not continuously maintained lawful B2 status, which was why she was in removal proceedings in the first place. We will add that the respondent was not able to apply for adjustment under INA 245(i), which allowed certain aliens who were not eligible for adjustment under INA 245(a) to apply anyway.
The Board summarized the key issue in its decision:
It is undisputed that the respondent was not in 'lawful immigration status' after the expiration in September 1993 of her authorized stay pursuant to the [B2] nonimmigrant visa. … The pivotal question in this case is whether her failure to maintain lawful status was for 'technical' reasons by virtue of the pendency of her asylum application that had been filed while she was in nonimmigrant status.
Matter of L-K-, 23 I&N Dec. at 679.
The immigration judge had granted the respondent's application after finding that the respondent's failure to continuously maintain her nonimmigrant status was on account of technical reasons, specifically the asylum application. However, as we will see, the Board disagreed with the immigration judge's decision.
Although the Board specified that it was considering whether the respondent's failure to continuously maintain her B2 status was for technical reasons, it noted that the regulations do not distinguish between the “no fault” and “technical reasons” exceptions to INA 245(c)(2). Matter of L-K-, 23 I&N Dec. at 679 n.5. The implementing regulation for the INA 245(c)(2) exception is found at 8 CFR 245.1(d)(2); 1245.1(d)(2). The regulation lists several cases in which the exception may apply, but the Board keyed in on the pertinent one for the instant issue:
A technical violation resulting from inaction of the [DHS] (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the [DHS] has not yet acted on that request).”
Matter of L-K-, 23 I&N Dec. at 679; quoting 8 CFR 1245.1(d)(2)(ii) (see also 8 CFR 245.1(d)(2)(ii)).
The Board resolved the issue very narrowly, rendering an opinion on the meaning of INA 245(c)(2) and 8 CFR 245.1/1245.1(d)(2)(ii) as it applied specifically to the long-pending asylum scenario presented by the respondent. The Board expressly declined to opine on the broader meaning of the regulatory provision at issue, thus meaning that the precedential value of Matter of L-K- is relatively confined to specific fact patterns and should not necessarily be read to apply to other scenarios involving applications by in-status aliens.
The Board stated its conclusion:
[W]e find that the 'technical reasons' for being out of lawful status end when the DHS acts favorably on a pending asylum application.
Matter of L-K-, 23 I&N Dec. at 680.
Why so? The Board reasoned that once the DHS declined to grant asylum and referred the matter to the immigration court for removal proceedings, it undertook a significant action. 8 CFR 245.1(d)(2)(ii) and 1245.1(d)(2)(ii) explicitly refer to cases in which a violation of status is caused by the Department not taking action. The Board analogized the scenario to a case in which an alien applies to maintain status (e.g., extension or change of status) and the application was not acted on before the alien's status lapsed:
[The regulation] specifically provides that the applicant will not be considered to have failed to maintain status if a request to maintain status has been made and 'the [DHS] has not yet acted on that request.' Thus, once the DHS has acted upon a pending asylum application, the 'technical' reasons for the violation cease to exist, and the applicant may not longer be considered out of status for technical reasons.
Matter of L-K-, 23 I&N Dec. at 681.
Finally, the Board applied its findings specifically to the respondent's case:
[T]he respondent filed an asylum application while she was still in nonimmigrant status. That status expired while the application was pending. The asylum officer then referred the asylum application to the Immigration Court in January 1997. Once the DHS acted on the respondent's asylum application by referring it to the Immigration Court, the respondent could not be considered out of status 'for technical reasons.' She did not seek to apply for adjustment of status until well after the referral.
Matter of L-K-, 23 I&N Dec. at 681. (Emphasis added.)
One interesting and important point in Matter of L-K- is that it is limited even in the context of cases where an alien's status lapses while an asylum application is pending:
Our holding is narrow and limited to the factual scenario at issue in this case. In particular, our decision relates only to those situations in which an asylum application was filed while the alien was in nonimmigrant status, the nonimmigrant status subsequently expired, and the asylum application was referred to the Immigration Court by the DHS prior to the time the alien applied for adjustment of status.
Matter of L-K-, 23 I&N Dec. at 682.
That is, Matter of L-K- does not, under its own terms, address a case wherein an alien applies for adjustment of status after his or her status expired but while his or her asylum application is pending with the USCIS.
Moreover, as we noted earlier in the article, Matter of L-K- does not reach cases where INA 245(c)(2) does not apply. For example, if the respondent had been seeking adjustment based on an approved immigrant visa petition filed by a U.S. citizen spouse, there would have been no INA 245(c)(2) question because the bar does not apply in immediate relative cases.
Conclusion
Matter of L-K- is a BIA precedent with a limited scope, applying only to a specific pattern wherein an alien applies for adjustment of status after his or her status expired before the USCIS declined to grant an asylum application. However, Matter of L-K- remains good law for the scenario it addresses, having been cited to favorably by multiple Federal circuit courts.
In general, those who believe that they may have a colorable case for asylum should consult with an experienced immigration attorney for a case-specific assessment. In addition to offering guidance on asylum, an attorney may explain other forms of relief or benefits that may be available depending on the specific facts and circumstances of the particular case.