L-K
23 I. & N. Dec. 677 (2004)
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Rule of Law:
An alien's failure to maintain lawful status is not 'for technical reasons' under 8 U.S.C. § 1255(c)(2) if their nonimmigrant status expired while an asylum application was pending, and the Department of Homeland Security (DHS) subsequently referred that application to an Immigration Court before the alien applied for adjustment of status.
Facts:
- L-K-, a citizen of Ukraine, entered the United States in March 1993 as a nonimmigrant visitor authorized to remain until September 25, 1993.
- On August 27, 1993, while still in lawful status, L-K- filed an asylum application with the Immigration and Naturalization Service (now DHS).
- L-K-'s authorized stay expired on September 25, 1993, while her asylum application remained pending.
- L-K- appeared for an interview with an asylum officer on January 28, 1997.
- Following the interview, the DHS referred her asylum application to the Immigration Court.
- While her case was proceeding, L-K- was approved to receive a diversity visa through the fiscal year 2002 lottery.
Procedural Posture:
- After L-K-'s asylum application was referred, the INS issued an Order to Show Cause on January 29, 1997, initiating deportation proceedings in Immigration Court.
- In a decision dated July 16, 1999, the Immigration Judge denied L-K-'s application for asylum and withholding of deportation.
- L-K- (appellant) appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
- While her appeal was pending, L-K- was approved for a diversity visa and requested that the BIA remand her case to the Immigration Judge to apply for adjustment of status, which the BIA granted.
- In the remanded proceedings, the Immigration Judge granted L-K-'s application for adjustment of status on September 27, 2002, over the objection of the DHS.
- The DHS (appellant) appealed the Immigration Judge's grant of adjustment of status to the Board of Immigration Appeals (appellee is L-K-).
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Issue:
Does an alien's failure to continuously maintain a lawful status qualify as being 'for technical reasons' under section 245(c)(2) of the Immigration and Nationality Act when the alien filed for asylum while in lawful status, that status expired while the application was pending, and the asylum application was referred to the Immigration Court before the alien applied for adjustment of status?
Opinions:
Majority - Chairman Scialabba
No, an alien's failure to maintain lawful status under these circumstances is not 'for technical reasons.' The regulatory exception for failing to maintain status due to 'technical reasons' applies to inaction by the DHS, such as when the agency has not yet acted on a timely filed request. The Board concluded that the DHS's referral of an asylum application to the Immigration Court constitutes a significant 'action,' not inaction. Once the DHS acts on the application by referring it, the 'technical reasons' for the alien's lapse in status cease to exist. Because the DHS referred L-K-'s application to the court before she applied for adjustment of status, she was statutorily ineligible for that relief under section 245(c)(2).
Analysis:
This decision narrowly interprets the 'technical reasons' exception for adjustment of status eligibility, creating a bright-line rule for asylum applicants. It establishes that a referral to Immigration Court is a dispositive 'action' by DHS that terminates the grace period for an expired status, even if the asylum claim has not been finally adjudicated. This holding emphasizes the critical importance of timing for aliens seeking to adjust status while an asylum claim is pending. The ruling differentiates between mere agency delay (inaction) and an administrative transfer of the case (action), impacting the strategies of immigrants whose status lapses while awaiting a decision.
