Lee, Mark, Esq.

Jaime Barron, . C.
12240 Inwood Road, Suite 300
Dallas, TX 75224
Name: TEVES, MIGUEL ANGEL
U.b.8gBYm80 0J0508
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
J0Lcc80urgI8c, Nll0Z000
GbLhNrCh, lrglnlG J0JJ0
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Iring, A 75062-2324
A 089-627-272
Date of this notice: 711/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
FH0! M0DD0!5:
BU0y, H0g0I
L00, B||C|BP.
V0P0BD0, LP0B .
Sincerely,
DO CO
Donna Car
Chief Clerk
Lul88g88
U5eI|0D: L0CK0
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Miguel Angel Teves, A089 627 272 (BIA July 1, 2014)
U.b.8g8IfB80f 0B5f08
Executive Ofce fr Imigration Review
Falls Church, Virginia ?30
File: A089 627 272 - Dallas, TX
In re: MIGUEL AGEL TEVES
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Mark Lee, Esquire
ON BEHALF OF DHS: Mary Agnello
Assistt Chief Counsel
CHARGE:
Decision of te Board of I igation Appeals
Date: JUL 1 ll1
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -
Present without being admitted or paoled
APPLICATION: Reopening and remand
The respondent, a native and citizen of Peru, ha appealed fom an Immigration Judge's
Mach 15, 2012, decision denying the respondent's motion to reconsider. The Depaent of
Homelad Securit ("DHS") has fled a response in opposition to the respondent's motion to
reconsider. The record will be remanded fr fher proceedings.
This case was lat befre U on December 20, 2009, when we vacated the Immigraton
Judge's decision ad remaded the record fr fer proceedings ad fr te enty of a new
decision. Upon remad, in a February 6, 2012, decision, the Immigation Judge issued a order
grating te respondent pre-conclusion voluntary depaure under section 240B(a) of te
Immigation ad Nationality Act. On Mach 21, 2012, te respondent fled a motion to witdraw
hs volunty depae request ad a motion to reconsider, stating that he had withdrawn his
adjustent of stats application and accepted the Immigraton Judge's ofer of voluntay
depae because, at the merit hearing, the Immigation Judge was requiring m to submit a
new medical exaination ad would not gant a continuance. He agued in his motion tat te
regulations do not require hm to submit a updated medical examination because he had already
submitted one along wit the initial fling of his adjustment of status application. He argued tat
the regulations only require a new medical exaination fr applicants who entered te
United States as a "nonimigat spouse, face, or facee O a United States citizen or the
child of a aien" ad only if the applicant had not been exained as a condition Oobtaining te
nonimmigat visa within 1 yea of the date of the adjustment application. 008 C.F.R. 1245.5.
The Immigation Judge denied te respondent's motion to reconsider, stating tat pursuat to
8 C.F.R. 245.5, the respondent is required to have a curent medical exam completed within
1 year of the application. u, the Immigation Judge held tat te respondent had not
provided a curent medica exam ad is statutorily ineligible fr adjustent of status.
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Cite as: Miguel Angel Teves, A089 627 272 (BIA July 1, 2014)
f e
A089 627 272
Te respondent argues on appeal tat the Immigration Judge erred in requiring an updated
medical exaination because he had already submited one along wit te initial fling of his
adjustent of status application. He agues tat under the regulations, he was not required to
submit a new medica exaination ad that it was eror fr the Immigration Judge to require him
to do so or accept a order of deportaton or voluntay depae.
Te record shows tat the respondent fled an application fr adjustent of stats wit te
DHS on November 21, 2006, ad the DHS denied the application on February 26, 2007. P
Notice to Appea was issued, ad the respondent renewed his application fr adjustent of status
befre the Immigation Judge, fling a updated application with the Immigation Cour on
July 31, 2008, ad April 25, 2011 (Ex. 3). The respondent, however, did not fle a updated
For I-693 medical exaination document, ad instead relied on the medical exainaton that
was submited with his initial application.
We agee wit the respondent that the regulation does not support the Immigation Judge's
fnding that he was required to submit a curent medical examination. By its ters, the section
of the regulation stating "provided that the medical examination must have occured not more
tha 1 yea prior the [sic] date of application fr adjustment of status" applies only to applicats
who entered the United States a a "nonimmigrant spouse, face, or facee of a United States
citize1 or the child of an alien." 008 C.F.R. 1245.5.
We note that, in defning te scope of the regulation, United States Citizenship ad
Immigation Serices (USCIS) has issued memorada stating that, while the Form I-693 medical
exa repor is normally valid fr 1 yea fom the date of the civil surgeon's signature, it would
extend the validity of te civil sugeon endorsement beyond the 1-year theshold fr purposes of
adjustment of status applications. The policy memoranda explan that where a unexpired
medical examination denoting no Class P or B medica condition is fled with a adjustment
application, that medical exa will remain valid until the adjustent application is ultimately
adjudicated. 00 0._. Policy Memoradum, Extension of Validity of Medical Certifcations on
For I-693 (Sept. 4, 2013) (valid until May 31, 2014). H light of this policy ad in te absence
of any Class A or B medical conditions, we also conclude that it was inappropriate fr the
Immigration Judge to cite te regulation as a basis fr fnding the respondent statutorily
ineligible fr adjustment of status. Further, as the respondent indicates, he fled a medical exam
with his initia application fr adjustment of status. Under te policy in efect at the time of the
Immigration Judge's decision, te medical exam fled with the 1-485 wa still valid until
adjudication of the adjustment application. Tus, we fnd that te Immigration Judge ered in
preteriting the respondent's adjustent application.
However, on June 1, 2014, USCIS revised its policy to state that the medica
examination report must be submitted to USCIS less ta 1 yea aer completion of
te exaination, ad the beneft application must be adjudicated no more ta 1 year
aer the date the medical exaination report was submited to USCIS. 00
ht:// .uscis.gov/policymanual/HTML/PolicyMaual-Volume8-PartB-Chapter4.htl. This
new policy was not in efect at the time of the Immigration Judge's decision. However, given
tat USCIS has changed its policy efective June 1, 2014, to apply to any For I-693 supporing
a beneft applicaton adjudicated on or afer tat date, we fnd it appropriate to remad the record
to the Immigration Judge to set a new, prospective deadline fr the respondent to submit a
2
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Cite as: Miguel Angel Teves, A089 627 272 (BIA July 1, 2014)
l
l
A089 627 272
updated medical examination ad to adjudicate the respondent's application fr adjustment of
stats within 1 yea aer the date te medical examination is submitted. See USCIS Policy Alert,
PA-2014-005 (May 30, 2014).
Accordingly, te fllowing order is entered.
ORDER: The record is remaded fr fher proceedings consistent wit the fregoing
opinion and fr te entry of a new decision.
3
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Cite as: Miguel Angel Teves, A089 627 272 (BIA July 1, 2014)
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