U.S.

Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5I 07 Leesburg Pike, Suite 2000Falls Church, Virginia 20530

DiRaimondo, Michael P , Esq. DiRaimondo & Masi, LLP 445 Broadhollow Road, Suite 107 Melville, NY 11747
.

OHS/ICE Offic.e of Chief Counsel - DET

333 Mt. Elliott St., Rm. 204

Detroit, Ml 48207

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Name:NORRA,DASHNOR Riders:088-601-667

A 088-207-785

Date of this notice: 3/21/2014

Enclosed is

copy of the Board's decision and order in the above-referenced case.

Sincerely,

[)oYutL ca.;vu
Donna Carr Chief Clerk

Enclosure
Panel Members: Greer, Anne J. Pauley, Roger Cole, Patricia A.

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

U.S. Dpartment of Justice

Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

Files: A088 207 785 - Detroit, MI A088 601 667

In

Date:

MAR

2 I 2014

re: DASHNOR NORRA TRENDELIN NORRA a.k.a. Trendolyn Norra

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IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: Michael P. DiRaimondo, Esquire ON BEHALF OF DHS: Timothy P. McDonald Assistant Chief Counsel CHARGE: Notice: Sec. 237(a){l){B), l&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law (both respondents)

APPLICATION: Adjustment of status

The respondents appeal the Immigration Judge's October 14, 2011, decision denying their applications for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). The record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision. The only issue in this appeal is whether the respondent's failed to maintain "lawful status" such that they are not eligible for adjustment of status under section 245(a) of the Act. Specifically, the record reflects that the respondents filed for extensions of their nonimmigrant visas on October 25, 2005; the visas were set to expire on November 6, 2005 (Exh. 4). The respondents contend that, despite their diligence in checking the status of their extension requests, they did not receive an approval notice from the Department of Homeland Security ("DHS") until March 2009 (Exh. 4). The approval notice was back-dated as to be valid through May 2006 but no longer (Exh. 4). The DHS, which has denied the respondents' applications for adjustment of status due to their "unlawful presence" after the expiration of their visa extension, contends that an original approval notice was sent to the respondents in January 2006 and that they fell out of status in May 2006 rendering them ineligible for adjustment of status for which they applied on June 29, 2007. In his decision, the Immigration Judge found that, even if the respondents' extension requests had been approved in March 2009 and not before, they were still only valid through May 2006 (I.J. at 5). As such, the Immigration Judge determined that the respondents were out of status longer than 180 days prior to filing their adjustment of status applications in June 2007 such that they are not eligible for adjustment of status under section 245( a) of the Act (LJ. at 6-7).
Cite as: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

A088 .207 785 et.al

On appeal, the respondents maintain that, because their extension applications were pending until March 2009, they should be deemed to have maintained "lawful status" during that period and prior to filing their adjustment of status applications in June 2007. Specifically, the respondents argue that they accrued no "unlawful status" during the pendency of their applications for an extension of nonimmigrant status because the DHS delay in adjudication occurred through "no fault of [their] own or for technical reasons." See section 245(c)(2) of the Act; 8 C.F.R. 1245.l(d)(2)(ii) (2013). In addition, the respondents cite to a Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations, Section 222(g) of the Immigration and Nationality Act (Act) {IN-0014) (March 3, 2000), to support their assertions in this regard. It is the respondents' burden to establish eligibility for relief. See 8 C.F.R. 1240.8(d). The respondents seek adjustment of status under section 245(a) of the Act as employment-based applicants. In order to be eligible, the respondents must demonstrate the inapplicability of the statutory bars at section 245(c) of the Act to their applications, three of which are particular to employment-based adjustment applicants: sections 245(c)(2), (7), and (8). See also 8 C.F.R. 1245.l(b){2), (5), (6), (9), and (10). The limitation at issue in this case provides in relevant part: [S]ubsection (a) shall not be applicable to . .. (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 201(b) or a special immigrant described in section 10l(a)(27)(H), (I), (J), or (K)) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States. Section 245(c)(2) of the Act. The regulations define the phrase "other than through no fault of his or her own or for technical reasons," explicitly limiting the meaning of that phrase to four scenarios. 8 C.F.R. 1245.l(d)(2). The respondents rely on the definition: "[a] technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request)." 8 C.F.R. 1245.l(d)(2}(ii). Section 245(k) of the Act permits certain employment-based adjustment applicants to adjust although otherwise barred from adjustment of status under sections 245(c )(2), (7), and (8). The statute provides in pertinent part:
An

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alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if . . . (2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--(A) failed to maintain, continuously, a lawful status .. .

Section 245(k) of the Act.

2

Cite as: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

A088 207. 785' et.al

In this case, the evidence in the record shows that the respondents filed their extension requests a month before their nonimmigrant visas were set to expire and that they, through counsel, checked the status of their requests with Citizenship and Immigration Services ("CIS") on May 10, 2006; December 8, 2006; and, on June 27, 2007. Each time, the status checks showed the "current status" of their extension requests as "[c]ase received and pending. " Thus, as late as June 27, 2007, just 2 days prior to filing their applications for adjustment of status, CIS record checks showed the respondents extension requests were still pending and had not yet been approved. However, in the notices of denial for the respondents' adjustment of status applications, the DHS indicated that their extension requests had been approved and notices had been sent out in January 2006. The record indicates that there is no duplicate of this alleged notice and the DHS has not provided evidence that such notices were ever mailed to the respondents. Without evidence that the respondents were mailed notices that their extensions had been granted prior to March 2009, the date of the only approval notice contained in the record, we cannot agree that the respondents were out of status when they filed their adjustment of status applications in June 2007. In this regard, we find instructive, although not binding, the DHS's interpretation of the

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See Matter of L-K-, 23 I&N Dec.677 (BIA 2004). The DHS interpretation is reflected in its Adjudicator's Field Manual,
which states that when any extension of status request is "ultimately approved, the period during which the [extension request] had been pending would be considered, in retrospect, a period in which the alien was in a lawful nonimmigrant status...." U.S. Citizenship and Immigration,

regulations at issue with regard to approved extension applications.

Adjudicator's Field Manual, at Chapt. 23. 5(d)(4)(C)(ii), available at http://www.uscis.gov (June 22, 2012) (silent with regard to denied applications); see also Memorandum from Donald
Neufeld, Acting Assoc. Dir., Domestic Operations, U.S.Citizenship and Immigration Services, Dep't of Homeland Security, to Field Leadership (July 14, 2008),

Applicability ofSection 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act, at 6 (HQDOMO 70/23.1-P) ("USCIS 245(k) Memo")

(presenting the above-cited revisions to Chapter 23.5 of the Adjudicator's Field Manual). The DHS memo supports the contention that the DHS's adjudication time should not accumulate against the respondents' 180-day periods of non-status and the evidence shows an approval was not rendered until March 2009. In this regard, we note that the memorandum requires that the extension request be "ultimately approved" before the time during which the request had been pending may "be considered, in retrospect, a period in which the alien was in lawful nonimmigrant status (considering
an
. . .

."

Id.; cf Chaudhry

v.

extension request that was ultimately denied);

Holder, 705 F. 3d 289 (7th Cir. 2013) Dhuka v. Holder, 716 F.3d 149

(5th Cir.2013) (same). Under the circumstances of this case, we find that the respondents are not barred from adjustment of status under section 245(a) of the Act because they were in lawful status during the entire pendency of their extension requests, or until March 2009. June 2007 and should be provided the opportunity to apply for such relief. Thus, the respondents were in lawful status when they filed their applications for adjustment of status in

Cite as: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

A.088).0.7 78'5 et.al

Accordingly, the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision. The record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.
ORDER:

Immigrant & Refugee Appellate Center | www.irac.net

FOR

THE BOARD

==

Cite as: Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Detroit, Michigan

File A 88 207 785 A 88 601 667

Immigrant & Refugee Appellate Center | www.irac.net

Date:

October 14,

2011

In the Matters of

DASHNOR NORRA TRENDOLYN NORRA Respondents

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a) (1) (B)

APPLICATION:

Adjustment of status under Section 245 of the Act

APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Timothy McDonald, Esquire

Michael P. DiRaimondo, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE Respondents are natives and citizens of Albania. The

Respondents were admitted to the United States on or about May 7, 2005 as B-2 visitors for pleasure with authorization initially to remain until November 6, 2005, and then ultimately extended. And

the Court will discuss the extension momentarily.

Respondents

admittedly overstayed the final grant of extension, which again

the Court will deal with shortly. that they are removable. removal become necessary.

And Respondents have admitted

They've designated Albania should

The applications are for adjustment of status.

For

Immigrant & Refugee Appellate Center | www.irac.net

adjustment of status, an applicant must have a visa immediately available, must have been lawfully admitted; and for the purposes of this hearing, the issue is whether or not the Respondents were in lawful status at the time the adjustment of status application was, in each instance, filed. I'm going to treat July, 2007 as

the time of filing for these purposes. In summary, the argument is that Respondents have made a timely application for extension of status, and that timely application, non-frivolous, had not been adjudicated by USCIS. It

was not adjudicated until March of 2009, by which time Respondents had actually already filed their adjustment of status applications which were pending and moving forward through the Service. It

should be noted that those adjustment applications were denied by the Service. They were denied by the Service on the basis that

the Service indicated consistently throughout their decision that Respondents had fallen out of status as of May 6, 2006, based on a

decision that had been rendered on or about January 18, 2006 granting the request for adjustment. This is despite the fact

that Respondents had made inquiries using the online system, in that it was utilized by users at that time, and may still be. Those inquiries included on May 10, A 88 207 785/A 88 601 667 2 2006, I'm looking at Exhibit October 14, 2011

(',

4, Tab C, September 12,

2006, December 8,

2006, and June 27, 2007,

just prior to the submission of the application. Respondents argue that since the application was pending and had not been adjudicated, they were in lawful status and

Immigrant & Refugee Appellate Center | www.irac.net

therefore could lawfully file the adjustment of status application. The Court notes that USCIS has rejected this The Court

argument on the basis of the earlier alleged decision.

is not necessarily required to make that final finding as to whether there was a decision or not. issue in this manner. Before the Court, the regulation that governs is Section 1245. 1. And in Subsection D-2, where regulations discuss whether I'm going to address the

a person is in lawful status or has fallen out of status for technical reasons. In Subsection 2, the regulation provides a

technical violation resulting from inaction of the Service, as, for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request. about refugee or asylee status. The Court looked and asked for assistance from the Court's law clerks as to construction of this provision. The only And there's a sentence talking

construction that was found is a published decision of in re L-K-, Respondent. 30, 2004. It's a 23 I&N Dec. 677, Board decision on September In that instance, unlike the situation here where it

was an I-539, the argument was that Respondent was in status at A 88 207 785/A 88 601 667 3 October 14, 2011

 (
the time that an asylum application was filed, that the underlying non-immigrant status expired, but that since the matter was continued in court and since the Respondent sought adjustment during the court proceedings, the Respondent was able to timely

Immigrant & Refugee Appellate Center | www.irac.net

file for adjustment in that case based on selection and the diversity lottery. The Board found that the USCIS action in

referring the matter from the CIS Asylum Office to the Court constituted the CIS action that the underlying non-immigrant status had not been maintained and that the Respondent therefore did not have lawful status at the time that the adjustment application was filed. It is interesting and instructive, in one

sense, that the argument in that matter to the Board included, and I'm looking at page three of the decision, uThe parties have

responded to our request for opinions by citing DHS opinion letters and unpublished decision of the AAU, letters of Ed Skerrett, Chief, Immigrant Branch, Adjudications, reprinted in Interpreter Releases, a letter from James Puleo, Assistant Commissioner, Adjudications, reprinted in Interpreter Releases, " and the Board then says first, uwe point out that these opinions See, for example, Matter

are not binding precedent for the Board. of Ma, 22 I&N Dec. 67 {BIA 1998) . "

So on the issue of whether or

not the Pearson memorandum or any other CIS memorandum on the procedures for processing are binding the Court, the Court finds that the Board has already said those are not binding on this Court. A 88 207 785/A 88 601 667 4 October 14, 2011

The Board also took a rather technical evaluation of whether the individual was in status. And the Court looks in this

instance to an important point to the Court as to whether Respondents, in fact, were still in status at the time of filing.

Immigrant & Refugee Appellate Center | www.irac.net

If one indicates that the I-539 was still pending, as would have been suggested to Respondents by their online inquiries, and I'm not sure in reviewing this whether these are the online inquiries that the individual Respondents made or whether it's just Counsel's online check and verification. And I understand Counsel

appearing in court today was not counsel for Respondents at that time. So he would not be able to address that issue. The bottom

line is the application for the extension was for a six-month period. So whether the application was going to be approved in

January of 2006 as CIS reflects in their memorandum, or in March of 2009 as would be suggested by the sole copy of an approval notice that has been part of the documentation presented to the court by Respondents, the application asked for a six-month timeframe of extension until May 2006. It did not ask, nor is

there any record of evidence that anyone ever asked to extend it beyond that date. So even if it was approved in 2009 or in 2010,

the approval would have been for the time period set forth on the I-539, which was until May 5, 2006. So the argument that this was

backdated in some sense appears to the Court to not be appropriate. The approval notice reflects approval of the

extension requested, which was until May 5, 2006, and not longer. A 88 207 785/A 88 601 667 5 October 14, 2011

And there is nothing in the record to indicate to the Court that additional requests were made to further extend that timeframe, such as to provide that Respondents would have in fact have still been in with a lawful status.

Immigrant & Refugee Appellate Center | www.irac.net

Now, the Court's ruling is therefore that Respondents were not in lawful status at the time. That the 245{k) grace And that,

period, if you wish to call it that, had expired.

consequently, the adjustment of status applications were not timely, and therefore not to be considered. And the Court is In that

going to rule that they will not be considered today.

regard, the Court is going to indicate that it does not appear to the Court that Respondents acted improperly; nor, frankly, if the record before the Court is accurate, and the Court has no reason to believe it is not, that their prior counsel acted improperly. Would it have been wiser perhaps to spend the time to call the 1-800 number and get a specific reading? Frankly, the online

system, the Court will draw back to time in private practice just before taking the bench, was not necessarily always considered the most reliable source. The 1-800 number may not have been any more

reliable, since it may have well have drawn on the same database. The Court is constrained to find that it appears that Respondents did all that they could, short of actually filing additional extensions, applications on I-539 to continue the lawful status beyond the May 5, 2006 date, to which the extension granted. But

since they did not and since the record evidence is that when the A 88 207 785/A 88 601 667 6 October 14, 2011

..

( I
"

extension was granted, it was granted for the period requested and not beyond, which is the normal course of action for users, in the Court's experience. And since that date is approximately 14

months prior to the date of filing, the Court finds that the

Immigrant & Refugee Appellate Center | www.irac.net

adjustment applications were not timely, therefore, that they must be denied for that reason.

DAVID H. Immigration Judge

A 88 207 785/A 88 601 667

October 14, 2011

(
CERTIFICATE PAGE

I hereby certify that the attached proceeding before DAVID H. PARUCH, in the matter of: DASHNOR NORRA A 88 207 785 TRENDOLYN NORRA A 88 601 667 Detroit, Michigan was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

Immigrant & Refugee Appellate Center | www.irac.net

Elizabeth M. Conrad, Transcriber

YORK STENOGRAPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

November 17,

2011

Completion Date emc/bjn