U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Q[fice ofthe Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 2204/

OHS/ICE Office of Chief Counsel - BOS

P.O. Box 8728
Boston, MA 02114

Name: MALAVIYA, KAVITA KIRIT

A 076-959-176

Date of this notice: 5/20/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DonrtL c

tVvt.)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
O'Herron, Margaret M
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Kavita Kirit Malaviya, A076 959 176 (BIA May 20, 2016)

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Drew, Randall A.
Drew Law Office, PLLC
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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A076 959 176 - Boston, MA

Date:

MAY 2 0 2016

In re: KAVITA KIRIT MALAVIYA a.k.a. Kavita Dale Kuismi a.k.a. Kavita Dale Kusm.i

APPEAL
ON BEHALF OF RESPONDENT: Randall A. Drew, Esquire
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 (conceded)

APPLICATION: Adjustment of status

This matter was last before the Board on June 25, 2013, when we granted the parties' joint
motion to reopen and remanded the record to the Immigration Court for the respondent to pursue
adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C.
1255(a), based on an approved Alien Relative Petition (Form 1-130) filed on her behalf by her
United States citizen daughter. On May 19, 2014, the Immigration Judge found the respondent
statutorily ineligible for adjustment of status and this timely appeal followed. The respondent's
appeal will be sustained and the record will be remanded to the Immigration Judge for further
proceedings consistent with this decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F .R. 1003 .1 (d)(3 )(ii).
In the course of remanded proceedings, the respondent, a native and citizen of India,
submitted an application to adjust status accompanied by an approved visa petition filed on her
behalf by her United States citizen daughter (I.J.2 at 1-2; Resp. Sept. 17, 2013, Documentary
Submission)1. The respondent previously attempted to adjust status as the beneficiary of a visa
petition filed by her United States citizen spouse (I.J.l at 3-4). However, the former Immigration
and Naturalization Service (INS), now United States Citizenship and Immigration Services
(USCIS), cited section 204(c) of the Act, 8 U.S.C. l 154(c), in denying the spousal visa petition
1

Immigration Judge decisions were issued on January 24, 2003, and May 19, 2014, that will be
referred to hereinafter as I.J.l and I.J.2, respectively. In addition, two non-continuously
paginated transcripts were generated in these proceedings related to the January 24, 2003, and
May 19, 2014, decisions that will be referred to hereinafter as Tr.1 and Tr.2.

Cite as: Kavita Kirit Malaviya, A076 959 176 (BIA May 20, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A076 959 176

The Immigration Judge erred in finding that the respondent is barred from adjusting her
status based on section 204(c) of the Act. The language of section 204(c) of the Act expressly
states that no petition shall be approved if a finding of marriage fraud has been made. Here, the
visa petition filed for the respondent by her daughter has already been approved and it is only her
adjustment of status application that is pending before the Immigration Court. Furthermore, the
Board has consistently held that USCIS has the exclusive authority to determine whether the bar
found at section 204(c) of the Act applies to the adjudication of a visa petition. See, e.g.,
Matter ofTawfik, 20 l&N Dec. 166, 167 (BIA 1990) ("Accordingly, [under section 204(c) of the
Act] the district director must deny any subsequent visa petition for immigrant classification
filed on behalf of such alien ... " (emphasis added)); Matter of Rahmati, 16 I&N Dec. 538, 539
(BIA 1978) ("The section 204(c) decision is to be made on behalf of the Attorney General
by the District Director in the course ofhis adjudication ofthe subsequent visa petition." (citing
Matter of Samsen, 15 l&N Dec. 28 (BIA 1974)) (emphasis added)). Accordingly, an
Immigration Judge has no authority to apply section 204(c) of the Act in adjudicating an
application for adjustment of status.
To be eligible for adjustment of status under section 245(a) of the Act, a respondent must
show that she: (1) has filed an application for adjustment of status; (2) is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence; and (3) has an
immigrant visa immediately available to her. See section 245(a) of the Act; 8 C.F.R.
1245.l(a). She must also demonstrate that she merits relief in the exercise of discretion.
There is no dispute that the respondent has applied for adjustment of status. Further, she is
the beneficiary of an approved visa petition. As a visa is immediately available to the
respondent, she has demonstrated prima facie eligibility to pursue adjustment of status under the
first and third prongs of section 245(a) of the Act. See section 201(b)(2)(A)(i) of the Act,
8 U.S.C. l l5I(b)(2)(A)(i). We acknowledge, however, that the prior visa petition denial under
section 204(c) of the Act may trigger a ground of inadmissibility with respect to the second
prong in section 245(a) of the Act. See, e.g., section 2I2(a)(6)(C)(i) of the Act, 8 U.S.C.
1182(a)(6)(C)(i) (involving inadmissibility for fraud or a material misrepresentation in seeking
admission or an immigration benefit). In addition, we express no opinion as to whether, if prima
2

The Immigration Judge properly noted the absence of any record evidence that the October 15,
2002, decision from the INS had been disturbed (I.J.2 at 3). However, a review of our
administrative records reveals that on April 4, 2003, the Board reversed the visa petition denial
and remanded the record to USCIS for further proceedings. A courtesy copy of that order is
being provided to the parties with this decision.

2
Cite as: Kavita Kirit Malaviya, A076 959 176 (BIA May 20, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

on October 15, 2002 (I.J.2 at 3; Exh. RI). The Immigration Judge found that, in light of the
October 15, 2002, decision and in the absence of any record evidence that this decision had been
vacated or modified, the respondent is barred under section 204(c) of the Act from adjusting her
status based on the approved visa petition filed by her daughter (1.J.2 at 3; Tr. at 10-17). 2
Accordingly, the Immigration Judge granted the Department of Homeland Security's (DHS's)
motion to pretennit the respondent's adjustment application (1.J.2 at 3-4).

A076 959 176

facie eligible, the respondent merits relief in the exercise of discretion. However, in light of the
current visa petition's approval on the respondent's behalf as the parent of a United States
citizen, we conclude that the Immigration Judge impermissibly relied on section 204(c) of the
Act when pretermitting the respondent's adjustment application.

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded for the Immigration Judge to conduct further
proceedings and for the entry of a new decision consistent with this opinion.

3
Cite as: Kavita Kirit Malaviya, A076 959 176 (BIA May 20, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In light of the foregoing, we conclude that remand of the record is required for the
Immigration Judge to further consider the respondent's eligibility for adjustment of status,
including: (1) whether she is admissible, (2) if she is inadmissible, whether a waiver of
inadmissibility is available, and (3) whether she warrants relief in the exercise of discretion. See
section 245(a) of the Act. On remand, the parties should have an opportunity to present
additional documentary and testimonial evidence in assisting the Immigration Judge in issuing a
new decision.

Jn re: K A V JTA
KJRJT M A
KU1SMJ, Pe ti ti on L A V lY A , B en ef ic ia ry o f a vi sa p et
er
it io n filed

by D A L E KEff

ON BEHALF OF
PETJTJONER:
Suresh H.-Oalal, E
squire
ON BEHALF OF
SERVJCE: Hen
ry J. H an le y
A ss is ta nt D is tr ic

A PP L JC A T JO N

: Pe ti ti on to -c1a
ssify st at us

ORDER:

t C ou ns el

o f al ie n re la ti ve
fo r i1;suance of
imm

j,grant vrsa

P E R CURI.AM
. T he pe ti ti on
er , in th e cl ai m
in st ru ct ed to su
ed no ti ce o f in te
bm it co un te rv ai
nt io n to d en y, ap
li ng ev id en ce to
di re ct or in th e de
pa re nt ly w as
ov
er co m e th e in te
ci si on da te dU ct
nd ed .g ro un ds o
ob er rs, 20 02 , d
an y cr ed ib le ev
f
de ni al . the
et er m in ed th at th
id en ce th at ov er
e pe ti ti on er ha d
co m es th e or ig in
vi sa pe ti ti on file
fa ile d to su bm it
al -g ro un ds o f te
d by th e pe ti ti on
nn in at io n 1-:elatin
er on be ha lf of th
g
to th e pi:evious
e be ne fi ci .a t) ' .
. The record do es no
t
state the original gr co nt ai n th et la in 1e d no ti ce o f int~nded
ou nd s oftennin
..grounds o f denial
ation which fom1e
; nor does the record
E vi de nc e reJied
d the basis for the
on by the di re ct or
de
nial o f the visapet
must be part o r tire
(BIA 1986) [Rever
ifions.
re co rd . Matter o
sed denial w he re -s
f
P
ra
dieu, 19 J&N Dec.
pecific ba si s fo r
ab se nt from reco
deni
419
rd). Hence, we w
ill remand the re co al an d evidence un de rl yi ng denial
co m pl et e th e re
co rd . O n re m an
w
rd to at.ford the
ere
d th e pe ti ti on er
director an oppo
be ne fi ci ar y is e1
wiJJ be af fo rd ed -a
rt
un
ity
igib1e fo r th e be ne
to
n op po rt un it y to
li ts so ug ht un de
en te re d.
-estabJish th at th
r th e im m ig ra ti
e
on la w s. A ne w
de ci si on will be
The ap pe al is sustai
ned. The de ci si on
o f the di re ct or is
1-eversed. T he re co
rd is re m an de d.

'FOR THE Bt>A1m

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN V1SA PETITJO
N PROCEEDJNG
S
APPEAL

."/Pn o 4..2883

May 19, 2014

File: A076-959-176
In the Matter of

)
)
)
)

KAVITA KIRIT MALAVIYA

RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(1)(B), 237(a)(A), 237(a)(D)(i), 212(a)(6)(C)(i).

APPLICATION:

Adjustment of status.

ON BEHALF OF RESPONDENT:

Randall Drew, Esquire

ON BEHALF OF DHS: Melissa Gavegnano

Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondents (hereafter referred to as the male respondent and female
respondent) are natives and citizens of India, and were issued Notices to Appear on
separate dates in 1999. The procedural history of these two cases is lengthy and
incorporated

into prior decisions of the Immigration Court (Sheppard,

IJ) and the Board

of Immigration Appeals (BIA or Board). The two cases proceeded on separate tracks,
but ultimately both cases were remanded by the Board of Immigration Appeals for the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON,MASSACHUSETTS

court to consider applications for adjustment of status based on an approved visa

petition for each of the respondents filed by their adult daughter.

Section 204c. And the court grants the motion to pretermit. The cases are also
consolidated for purposes of this decision.
STATEMENT OF THE LAW
Section 204C of the Immigration and Nationality Act provides that no
petition shall be approved if:
Notwithstanding the provisions of subsection B. No petition shall be
approved if (1) the alien has previously been accorded, or has sought to be accorded,
an immediate relative or preference status as the spouse of a citizen of the United
States, or the spouse of an alien lawfully admitted for permanent residence, by reason
of a marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws, or (2) the Attorney General has determined
that the alien has attempted or conspired to enter into a marriage for the purpose of
evading the immigration laws. Baok to te*1:,
INA Section 240c.
FINDINGS AND ANALYSIS
In the case of the male respondent (074-998-626), the Immigration Court
(Sheppard, IJ) on March 31, 2006, denied a joint petition and found the respondent to
have entered into a marriage for the purpose of evading the immigration laws under INA
Section 204c. See written orders of the Immigration Judge, March 31, 2006 1
The court's decision was upheld by the Board on April 10, 2008. The
Board specifically found no reversible error in the IJ's decision to deny the joint petition
based on the conclusion that the facts and information set forth in the 1-751 were not

The orders contain two different dates. The first is March 1, 2006. The second is March 31, 2006.

A076-959-176

May 19, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The government has moved to pretermit the applications based on INA

true. BIA. April 10, 2008 Decision, page 3. The male respondent is thus barred from
further adjusting his status under INA Section 204c.

make the finding that the female respondent was subject to the 204C bar, it did note, in
the court's January 24, 2003, decision that what was then the Immigration and
Nationalization Service (I NS.J alternatively referred to as the Service1, made a finding
that the female respondent was found to be barred from adjusting status by virtue of the
INS decision. January 24, 2003, transcript page 3. Although Judge Sheppard was
under the impression that the denial of the visa petition based on fraud was appealed,
to either the Board eHlr the Administrative Appeals Office, there is no evidence that any
such appeal was taken. Thus, the decision of the INS denying the visa petition on
October 15, 2002, is a final agency decision and the respondent is ineligible to adjust
her status. The court specifically notes that INA Section 204c requires that there be a
finding by the Attorney General. The INS at that time was part of the Departure of
Justice, and therefore this final agency decision that the female respondent is subject to
the 204c bar was in fact made by the Attorney General. As the court is unable to review
grants or denials of visa petitions, the court is bound by this decision as well for the
present adjustment of status case. See October 15, 2002, Notice of denial of visa
petition filed with the court by DHS on May 19, 2014. Remanded Exhibit 1.
As the court finds that each of the respondent...~ is subject to the 204c
bar, the court grants the government's motion to pretermit their applications for
adjustment of status as they are ineligible.
No other applications are pending before the court.

A076-959-176

May 19, 2014

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As to the female respondent, although the Immigration Court itself did not

ORDERS
The following orders shall enter:

and denied. The respondents are ordered removed to India.

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The respondent's applications for adjustment of status are pretermitted

If any party wishes to appeal this decision, the appeal will be due at the Board of lmmign

Please see the next page for electronic

signature
ROBIN E. FEDER
United States Immigration Judge

A076-959-176

May 19, 2014

/Isl/
Immigration Judge ROBIN E. FEDER

Immigrant & Refugee Appellate Center, LLC | www.irac.net

federr on January B, 2015 at 6:04 PM GMT

A076-959-176

May 19, 2014