Introduction: USCIS Designates the Matter of L-S-M- as an Adopted Decision

On May 13, 2016, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memo [see PM-602-0133, which includes text of the decision] designating the Administrative Appeals Office decision in the Matter of L-S-M-, ID# 14367 (AAO Feb. 23, 2016) an “adopted decision.” Accordingly, the decision is now cited as the Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016). When the Matter of L-S-M- was issued, its holding did not apply beyond the instant case. However, now that the USCIS has designated it as an adopted decision, it is “binding on all USCIS adjudication officers, but not yet published as a precedent decision” [see USCIS glossary].1

The Matter of L-S-M- held that “the exemption to civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to [U1] nonimmigrant victims of qualifying activity.” However, in accordance with the Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007) [PDF version] civil penalties for the failure to comply with an order of voluntary departure will not apply if the failure to comply with an order of voluntary departure was not voluntary.

In this article, we will review the facts of the Matter of L-S-M-, the underlying statutes, and its effect going forward now that the USCIS has designated it as an adopted decision.

Facts of the Case and Procedural History

The applicant in the Matter of L-S-M- was a native and citizen of Mexico who was applying for adjustment of status from U1 nonimmigrant status [see article].

In 2007, the applicant had been placed into removal proceedings under section 240 of the Immigration and Nationality Act for entry without inspection (EWI). The Immigration Judge in the case granted the applicant voluntary departure under section 240B, with an alternate order of removal to Mexico if the applicant failed to depart in accordance with the terms of her voluntary departure. The applicant was notified of the consequences for failing to comply with the order of voluntary departure under section 240B(1), which include a civil penalty and a 10-year bar to adjustment of status under section 245.

Before the applicant’s voluntary departure period ended, she appealed the Immigration Judge’s decision with the Board of Immigration Appeals (BIA). The Board dismissed the appeal and extended the applicant’s voluntary departure period.

However, the applicant failed to depart the United States in the voluntary departure period. In fact, she remained in the United States and filed a Form I-918 petition for U nonimmigrant status [see article]. The petition was granted and the applicant assumed U1 status. In 2013, the applicant applied for adjustment of status under section 245(m) based on her U1 status.

The applicant’s application for adjustment of status was denied because 10 years had not elapsed since the final date of her voluntary departure (the 10-year period will elapse on October 14, 2018). The USCIS District Director who denied the application certified the matter to the Administrative Appeals Office (AAO) for guidance on whether the civil penalties and the 10-year bar to adjustment of status in section 240B(d)(1) of the INA apply to U1 nonimmigrants. First, this is because the U1 nonimmigrant visa program was created subsequent to section 240B(d)(1). Secondly, section 240(B)(d)(2) exempts from 240(B)(d)(1) those who file for adjustment of status as VAWA self-petitioners [see article]. The District Director sought guidance on whether the provisions exempting VAWA self-petitioners may apply to U1 nonimmigrants applying for adjustment of status as well.

AAO Analysis and Decision

The AAO had two issues before it:

1. Does the 10-year ineligibility period for adjustment of status for an alien who failed to comply with an order of voluntary departure (10 years from the date of the expiration of the voluntary departure period) apply to a U1 nonimmigrant applying for adjustment of status on the basis of U1 nonimmigrant status?
2. If the 10-year ineligibility period applies, was the applicant nevertheless eligible to adjust status because her failure to voluntarily depart was not “voluntary”?

Issue (1)

Section 240B(d)(1)(B) renders an alien who fails to comply with an order of voluntary departure “ineligible, for a period of 10 years, to receive any further relief under this section and sections 240A, 245, 248, and 249.” At issue in the Matter of L-S-M- was section 245 which covers adjustment of status.

Section 240B(d)(1) renders section 240B(d)(2)(B) inapplicable to an alien described in 240B(d)(2). 240B(d)(2) states that “[t]he restrictions on relief under paragraph (1) shall not apply to relief under section 240A or 245 on the basis of a petition filed by a VAWA self-petitioner…”

The Board noted that the civil penalties in 240B(d)(1) predate the creation of the U nonimmigrant visa program [see category]. Furthermore, the Board noted that “the purpose of the U and VAWA provisions is similar, in that both offer immigration benefits for the victims of certain crimes and domestic abuse, respectively.”

However, the Board noted that the exemption for VAWA self-petitioners was authorized (in 2005) after the U nonimmigrant classification was enacted (in 2000). Furthermore, Congress reauthorized VAWA in 2013 but did not add an exemption for U1 nonimmigrants seeking adjustment of status. Additionally, the AAO noted that “the statutory authorities relating to U nonimmigrants at sections 101(a)(15)(U) and 214(p) of the Act are not included in the definition of ‘VAWA self-petitioner’ at section 101(a)(51)…” Citing to Russello v. United States, 464 U.S. 16, 23 (1983), the Board held that when “Congress includes language in one part of a statute, but omits others, it is presumed to do so purposely.”

Accordingly, the Board held that U1 nonimmigrants who are applying for adjustment of status are subject to 240(B)(d)(1).

Issue (2)

Having decided the first issue, the AAO moved on to the second issue. The AAO cited to BIA precedent in the Matter of Zmijewska, which held that “voluntarily fails to depart” refers “to a failure to complete an act or requirement within the actor’s control” (quote from AAO decision).

The AAO described the exemption in the Matter of Zmijewska as being far more limited than the “exceptional circumstances” exemption which has previously existed in statute. It is “limited to situations in which an alien, through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart.”

The AAO found that the record did not reflect that the applicant had an opportunity to demonstrate whether her failure to voluntarily depart was “voluntary” under the Matter of Zmijewska precedent, so it remanded the matter back to the District Director for further consideration.

Conclusion: Matter of L-S-M- Adopted Decision

The Matter of L-S-M- makes clear that the exemption from the 10-year ineligibility period for adjustment of status for those who violate an order of voluntary departure does not apply to U Nonimmigrant Visa [see category] holders seeking adjustment based upon U Visa Status [see category]. The decision expressly limits the exemptions in 240B(d)(2) to VAWA self-petitioners.

However, an alien who would be ineligible for adjustment of status (or for other benefits listed in 240(B)(d)(1)) for 10 years from the date of violating an order of voluntary departure may seek to demonstrate that the failure to comply with the order of voluntary departure was not “voluntary.” As the AAO notes in its decision, this may be done by showing that the applicant was, through no fault of his or her own, either (1) unaware of the order of voluntary departure or (2) was physically unable to depart the United States in accordance with the order.

An alien who is applying for adjustment of status should consult with an experienced immigration attorney. If the applicant is found to be ineligible to adjust status under section 240(B)(d)(1), an experienced immigration attorney will be able to examine the situation and determine whether there is an avenue for demonstrating that the failure to comply with the order of the voluntary departure was not voluntary.

  1. See also: 93 No. 21 Interpreter Releases Art. 9