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

8/12/2019 Dashnor Norra, A088 207 785 (BIA Mar. 21, 2014)

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Di Raimondo, Michael P, sq.DiR & as P Bdlw Road Suite 107v NY 7 47

Nae:ORRADAHers088-60-667

U.S pm of

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Board of Immigation ApealsOce o the Cek

5 07 Leesburg Pke, Suite 2000-Fl Chc Vgin 2030

HS/ICE Oce f ief use DET Mt St m 2Deoi Ml 48207

A 088-7-785

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For more unpublished BIA decisions, visit www.irac.net/unpublished

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


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S Dpartment of JusticeExecutive Ofce r Imaon Reew

Falls Chrch, Vrgna 0530

ies: A088 207 785 Deoi, MIA088 60 667

re: DASHOR NORRATRENDEL ORRA a.k.a Trendoyn Norra

IN REMOVA PROCEEDINGS

APPEAL

Decson o e Board o Imgraton Apeals

DaeMAR 2 I 2014

ON BEHAL OF RESPOENTS Michae P DiRaimondo, Esquire

ON BEHALF OF DHS: mohy . McDonadAsssan Chief Counse

CHARGE:

Noice: Sec. 237(a{{B, &N Ac [8 U.SC 227(a((B -In he Unied Saes in vioaion of aw (boh respondes)

APPLICATION: Adjusmen of sas

The resondens apea he Immgraon udge's Ocober 1, 20, decson denyng

heir appicaions r adjusmen of sas under secion 25(a of he Immaion dNaonay Ac, 8 U.S.C 1255(a. The record wi be remanded o he Immgraion Judge rrher proceedngs consisen wh his opnion an r en of a new decision.

The ony ssue in is apea is wheher he responden's ed o maiain aw saus"such ha hey are no egibe r adjusmen of sa under secon 25(a of e Ac.Secicay, he record reecs ha he resondens e r exesons of er nonmmigavisas on Ocober 25, 2005 e vsas were se o exire on November 6, 2005 (Exh. . eresondens conend ha, despie heir digence in checking he saus of her exension reques,hey dd no receive an approva noice om he Depamen of Homeand Secury (DHS"uni March 2009 (Exh . The aprova noce was back-daed as o be vaid rough May 2006

bu no onger (Exh The DHS, which has enied e respondens' apcaions r adjusmeo sas due o heir unaw presence" aer he expraon of heir visa exension, conendsha an origna approa noce was sen o he respondens n anuary 2 and ha ey fe ouo saus n May 2006 renering he inegbe r adusmen of sas r which ey apeon Jue 29, 2007. hs decsion, e Immgraion Judge und ha, even f e respondens'exenson requess had been approed in March 2009 and no bere, hey were si ony vadrough May 2006 (I.J. a 5. As such, he Immgraion udge deermned ha e respondenswere ou of saus onger han 180 days pror o ng her adjusmen of ss appicaions inJune 2007 such ha hey are no egibe r ajusmen of sas under secin 25( a of he Ac(J. a 67.



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088 2 78 et.al

On appeal, e repodent maintain at, bcaue tir extenio applicatio were pedinguntil Mc 2009, ty oul be deemd to ave mantained awl tau" dig at periodand por to ig eir aden o at appicatio i ue 2007. Specically, rpodet argue at ey accred no unlawl tatu" durig e pendency o theirapicatio r a exteion o onimmigrat atu bcaue he S ay i adjdicatio

occred trough o lt o [teir] ow or r tecica reao." S ectio 245(c)(2) o theAct; 8 .FR. 1245.(d)(2)(ii) (2013) addiio, t reondet cite o a Mmoradum omMica A Paron, Executi ociate ommiionr, Oce o Fied Oeration, tn222( f h Immgatn and Natna t (t) {IN-0014 (Marc 3, 2000), to uppo theiaion in t regad.

t i te repondet buden to etabli eligibili r relie S 8 .F.R. 1240.8(d). Thereondt eek ajment o tat der ecio 245(a) o e ct a employmentbaeaplict n order to be ligibl, te repodent mut demoate t iaplicabiity ote tattoy b at ectio 245(c) o te ct to teir application, ee o whic are paticulao mloymet-bad adutmet aplicat ection 245(c)(2), (7), ad (8). S as 8 FR.

1245(b){2), (5), () (9), and (). Te lmitaton at iue i hi cae proide in releatpa

[S]bection (a) al o b appicabl to . (2) ubect to ubection (k), a alien(oter ta a immediate relative a dened i ection 20(b) or a pecial imigratdecbed i ection 10(a)(27)(H), (), (J), or (K)) wo erear continue in oraccep uautozd emomet prior to ling an appicatio r adutme o tator who i unlaw immigraton ta on te date o lig the apcation radutmt o atu or wo a id (otr an roug o ut o ow or rtechical reaon) to maintai coiuouy a law tatu ice ey ito e UitedState.

Sectio 245( c )(2) o te Act Te regulaton dene te phra oter a ogh no ult oi or er own or r teccal reao, xplicitly iiting e eaig o ha prae to urceio. 8 .F.R. 1245(d)(2). T repoden rely on te denition a tecnicaviolation reultig om inaction o te Service (a r examl, were aplicat etablieta or e proprly ed a imely requt o matain atu ad e Seice a ot yet actedo at reque). 8 .F.R 1245.(d)(2}(i).

ecton 25(k) o te ct pemt ceai employmentaed adute alicant to adjualthoug orwie barred o adumnt o a under ectio 245( c )(2), (7), ad (8) Tetatute provid in erent pat

alien wo i eligible o receie a mmgrant a uder paragrap (1), (2), or (3) io b) or, n e ae o aen o an imiat ecrbd ectio1(a)(27)(), udr cton 23(b)()) may aut atu puru to ubection (a)and nowtadig ubection (c)(2), ( c)(7), and ( c)(8), i . . . (2) te alie,ubeuet o ch lawl admiio a no, r n aggegae period xcedig 180day() ied to maai, cotuouly, a aw ta .

2) e A.

2



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A08 27. 5' etal

In this case, te evidence in the record shows tha the respondents e their extensonequests a monh bere their nonimiat visas were se to epire and that hey, oughcounsel, checked the status of hei requests wih Cizensip and Iigration Services ("C)on May 1, 26; December , 26; and, on June 2, 2 Each tie, the satus checksshowe he "cent stas o teir etension requests as "[c]ase eceived ad pendig Thus,

as ate as June 2, 2, just 2 days prior to ing their appications r adustment of status, Irecord checks showed he respondents extension reuests were sil pendng ad had not yet beenapproved However, n the notices o denia r the responents adusent o statusappicaons, e DS indicated that their extension requests ad been approve n notices hadbeen sent out in uary 2006 The record idicates that there is no duplicae o ths allegenoice ad the DH has no povided evidence that such notices wee ever maied to the

espondents Wihout evidence that he respondents were mailed noices hat their extensionsha een graned ior to ach 209, e date of he only apov notice conained in therecord, we caot agree tha he responents were out o status when they ed their adjustmentof saus appications n June 2

In his regard, we nd instrucive, although not binding, the DHSs interpreation o thereguations a issue with regar to approved extenson appications ee Mae oL-K- 23 &NDec 6 (BIA 24) he DH nterpretation is reected in ts ucao' Fel Manual,whc states tat wen any etension o saus request is "ultimatey approved, the perio duringwich e [eension equest] had been pending woud be considere, in reospect a eriod inwich the aen was in a al nonmmigant stats US itizenship and Immigraion,ucao e anua at hapt 235(d)(4)()(ii), avaabe at htp://wscisgov(June 22, 212) (sien wi regar to denied appicatons) ee aoemorandum om DonadNeu, Acting Assoc Dir, Domestic Opeations, Citizenship and maion Seices,Dept of Homeand Security, to Field Leadership (July 4, 20, cabl oecon 245)o Cean Eoyen-ae uen o au caon e un eco 24(a) o

e aon an aona c at 6 (HQDOO 23-P) ("USCI 245(k) Memo)(presenting the aovecited revisions o Chaer 235 of e Adudcatos Fied nua)

The DHS memo suppos he contention tha he DHs ajuication time shou notaccmulate against e espondents 1-ay peios of non-status and he evidence shows appoval was no endeed n arch 209 n this rega, we note hat the memordmrequires at he extension request be "ultimatey approved bere the time during which therequest ha been pending may be considered, in retrospect, a perio in which he aien was inla nonimigrt status. " .; c Cauy v. Hole 5 3d 29 (th Cir 23)(consiering extension request that ws utiatey enie) Du v Hole 6 3d 9(5 ir 23) (sae) Under the circstances o this case, we nd that the respondents are

no bed om adustment o satus uner section 25(a) o the Act because they were in awstaus ding the entie pendency o their exension requests, or nti March 29 Ths eresponents ere in aw saus when they ed ther appicaions r ajusten o stas inne 2 and shold e provided the opporunity to appy such relief

3

http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdfhttp://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdf


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A0887 8 tal

Ardgl, rrd wll b rmadd t Immgrat udg r r prodigtt wit ti p ad r tr a w di

OER T rrd rmadd t mmgrati udg r rtr prdgtt wit ti p a r tr a w d

FOR THE BOAR

4



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DPME O TCEEXCE OIC O MMIGION V

IGTION COT

le 88 207 785 88 1 7

In the Mttes of

DHNOR NORNDOYN NO

espondents

CRG:

PPCON

PPECE

Detot Mchgn

Dte: Octobe 14 211

N REMOVL POCEEDNG

ecton 237a 1 B)

djustent of sttus nder ecton 245 of thect

ON BEH OF REPONDE ON BHL OF H DPRMNO HOMED ECY:

Mchel P Dondo Esque othy McDonld Esque

O DECON OF HE IGION DGE

espondents e ntves nd ctzens of lbn. he

Respondents were dtted to the Unted ttes on o bout My 7

205 s B-2 vstos fo plese wth uthozton ntlly to

ren nt Novebe 205, nd then ulttely etended d

the Cout wll dscuss e etenson oently. espondents

dttedly ovestyed the fnl gnt of extenson whch gn


7/13

the Cort wi dea with shorty Ad espondents hae admitted

that they are remoabe hey'e designated Abania shod

remoa become necessa

he appications are for adstment of stats or

adjstment of stas an appicant mst have a isa immediatey

avaiabe mst have been awfy admitted; and for the prposes

of this hearing he isse is whether or not the espondents ere

in awf stats at the time the adstment of stats appication

as in each instance fied Im going to tret Jy 2007 as

the time of fiing for these prposes

In smmary the argment is that espondents hae made a

time appication for extension of stats and that timey

appication nonfrivoos had no been adjdicated b I It

was not addicated nti arch of 2009 b whic time espondents

had acay aready fied their adjstment of stats appications

hich were pendin and moving forward throh the erice. It

shod be noted tat those adjstment apicaions were denied by

the ervice hey were denied b the ervice on the basis that

the erice indicated consistenty throghot teir decision that

espondents had faen out of stats as of a 6 2 based on a

decision that had been rendered on or abo Janary 18 2

graning the reqest for adjstment his is despite the fact

that espondents had made inqiries sing the onine system in

that it was tiized by users at that ime and may sti be.

hose iniries incded on ay 2 I'm ooin at Exhibit

A 88 207 785A 88 6 2 October 4 21


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,

4 ab C eptember 12 200 Deceber 8 200 ad ne 2 2007

jst pror to he sbmsson of he appcaon.

espodes are ha sice the appicato was pendg

ad had ot bee adjdcated hey were i awf stats and

therefore cod awfy fie he adjstmet of stats

appcatio. he Cort otes ha CI has rejected ths

armet o the bass of the earier aeed decsion he Cort

is ot ecessary reqred to mae that fia fdi as to

whether there was a decisio or ot I goi o address the

sse in this maer

Before the Cort the reation that goerns s ection

145 1 d i bsecton D where regations discuss whether

a perso is i awf sas or has fae ot of stats for

echnica reasos n bsecton 2 the reato proides a

techca ioaton restig fro nactio of he erice as

for exape where an appicat estabishes that he or she

propery fied a iey reqest to mana stats ad the ervice

has no yet aced on hat reqest d theres a setece tai

abot refee or asyee stas

he Cor ooed ad ased for assstace from he

Corts aw cers as to costrcto of this prosion he oy

cosrco ha was fond s a pbshed decsio of n re L-K-,

espodent Its a 23 I& Dec 77 Board decisio o eptember

30 4. In that istace ne the stato here where t

was a I53 the argmet was ha esponde was i stats at

A 88 207 785A 88 01 7 3 October 14 011


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he time that a asylm applicatio as filed, that the derig

o-immgrat stats epired, bt that sice the matter as

cotied i cort ad sice the espodet sght adstmet

drig the cort proceedigs, the espodent as able to timely

file for adstmet i that case based seectio ad the

diversity ttery he Board fnd that the CI actio i

referrig the atter from the CI Asylm Office to the Cort

costitted the CI actio that the derying n-immigrat

stats had ot bee maitaied ad that the Respndet therefre

dd nt have laf stats at the time that the adstmet

applicati as filed It is iterestig ad istrctive, i oe

sense, that the argmet i that matter to the Bard cded, ad

I'm looig at page three of the decisi, he parties have

respded t r reest for opiis by citig DH piio

letters ad npblished decisi o the etters o Ed

errett, Chef, Immigrat Brach, Addicatis, reprited i

Iterpreter Releases, a letter from ames le, Assstat

Commissier, Addicatins, reprited Iterpreter Releases,"

ad the Bard the says irst, e pint ot that these opiios

are not bidig precedet for the Board ee, fr example, atter

of a, I& Dec 67 {BIA 18) " o the isse of hether r

nt the earsn emadm or ay he CI memradm the

prcedres or processig are bidig the Crt, the Cort fids

that the Board has already said thse are t bidig o ths

Crt.

A 88 07 785A 88 60 667 4 October 4, 0


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/I

he oard also took a rather techncal eaation o

hether the indidal as n stats d the Cort ooks in ths

instance to an important pont to the Cort as to hether

espondens in ac ere stll in stats at the ime o ing

I one ndicates hat the I-539 as st pending as od hae

been sggested to espondents b their onne inqries and Im

not sre in reieing this hether these are the onine nqries

hat the indida espondents made or hether its st

Conses onne check and eriication And I ndersand Conse

appearing in cor oda as not consel or espondents at that

time o he old not be abe to address that isse he bottom

lne s the appcaton or the extenson as or a six-month

period o hether the applicaton as going to be approed n

Janar o 26 as CI reects in their memorandm or n arch

o 9 as old be sggested b the soe cop o an approa

notice that has been part o the docmentaton presented o the

cort b espondents the applicaton asked or a six-month

tmerame o extension nti a 26 It dd not ask nor is

here an record o eidence tha anone eer asked to eend t

beond that date o een t as approed in 9 or n 21,

the approal old hae been or the tme period set orh on the

539, hich as nti a 5, 6 o the argment that ths as

backdated in some sense appears to the Cort to not be

appropriate he approa notce reects approa o the

extenson reqested hich as nt a 5, 6, and not onger

A 88 85A 88 61 66 5 October 14, 211


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/I

And there is nohing n the record o indicae to he Cort that

addtiona reests were made to frther extend that tmeframe

sch as to provide tha espondents wod have n fact have sti

been in with a awf stats

Now the Corts ring s herefore that espondents

were not in awfu stats at the time hat the 24 grace

period if o wis to ca it that had expired And that

conseqent he adstmet of stats appications were not

time and terefore not to be considered And the Cort is

going o re hat the wi no be considered toda I that

regard the Cort is gong to indicate that it does not appear to

he Court that espondens acted improper; nor frank if the

record before te Cort is accrate and the Cort has no reason

to beieve it is no that their pror cose acted impropery.

Wod it have been wiser perhaps to spend the time to ca te

1-8 nmer and ge a specific readng? rank the onine

ssem the Cort wi draw back to time in private practice jst

before taking te bench was not necessari awas considered the

mos reiabe sorce he 18 nmber ma not have been an more

reiabe sice it ma have we have draw on the same database

he Cort is consrained to find tha it appears tha espondents

dd a that tey cod short of aca fiing additiona

extensions appications on I-5 to contie the awf stats

beond the a 26 date to wich the extension granted Bt

since the did not and since the record evidence is hat whe te

A 88 27 78A 88 61 667 6 October 14, 211


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. (I

extenson was granted t was granted for the perod reqested and

not beyond whh s the norma orse of aton for users, n the

Corts experene And sne that date s approxmatey 4

months pror to the date of flng the Cort fnds that the

adstment appatons were not tmey therefore that they mst

be denied o that reason.

DAVID HImmgraton dge

A 88 07 785A 88 60 667 7 Otober 4 0


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CERTIFICATE PGE

(

I hereby certify that the atached proceedng before

DAVI H. RUCH in he mater of:

DASHOR NO

A 88 207 78

TRNDOLYN NORRA

A 88 01 7

ero Michigan

was held as heren appears and ha ths is e orina

transcript hereof for he fe of he Execuive Offce for

mmgraton Revew

e/jn

Elzabe M Conrad ranscrber

YORK TENOGHIC SERVICE INC.3 Nor George reeYork ennsyvana 170112(717 8540077

oveer 17 2011

Competon Date

Documents

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