Matter of Garcia, 25 I.&N. Dec. 332 (BIA 2010): A convictions for a single crime involving moral turpitude that qualifies as a petty offense is not for an “offense referred to in section 212(a)(2)” of the INA, for the purposes of triggering the “stop-time” rule in INA section 240A(d)(1), even if it renders the alien removable under INA section 237(a)(2)(A)(i).

Matter of Legaspi, 25 I.&N. Dec. 328 (BIA 2010): An alien is not independently “grandfathered” for purposes of adjustment of status under INA section 245(i) simply by virtue of marriage to another alien who is “grandfathered” under section 245(i) as the result of having been a derivative beneficiary of a visa petition.

Check out the Virtual Law Library of the Executive Office for Immigration Review for more decisions of interest!

© 2010, Thaker Berowitz LLP. All rights reserved.

The case has a complex procedural history, but an interesting one.   Our client was convicted of an “aggravated felony,” and as a lawful permanent resident, he was not eligible for any form of discretionary relief from removal.  Thus, his only hope to remain in the United States was to be declared a derivative citizen based on the fact that his mother had naturalized prior to his turning 18 years old.

Typically, in cases like this, for a child to derive citizenship, both parents are required to have naturalized before the child has turned 18 years old.  However, if there is a “legal separation” or a divorce between the parents, then (in most cases, depending on the applicable law), the government will look to see which parent was awarded the “physical” custody of the child pursuant to a separation agreement or the divorce judgment.  If the parent who has the physical custody of the child naturalizes prior to the child turning 18 years old, then the child will derive citizenship from that parent (even if the “child” no longer is a child an is an adult).  In order to claim derivative citizenship, one must file Form N-600 with the U.S. Citizenship and Immigration Services to obtain a “Certificate of Citizenship” (as opposed to a Certificate of Naturalization).

Our client’s parents did not have a formal “legal separation” and their divorce was not finalized until after our client was over the age of 18.  However, the mother of our client, a U.S. citizen, was awarded custody of our client before he turned 18 years old through first a temporary restraining order (TRO) and eventually a final restraining order (FRO).  The Department of Homeland Security argued that the FRO was not a legal separation, so it could not be recognized as a legal document giving the mother custody of our client.  We argued the opposite, that since the FRO was a document issued by a competent court, it was a legal document that altered the marital union between the two parents, and therefore the U.S. citizen parent did have physical custody of our client prior to his 18th birthday and he was a derivative U.S. citizen.

We won in immigration court and an Immigration Judge declared our client a U.S. citizen.  He was released from detention while the DHS filed an appeal to the Board.  On appeal, we successfully persuaded the Board that under the current immigration laws that applied to our client’s case, he was a derivative United States citizen.  Ironically, while the DHS thought this issue was important for it to appeal to the Board, no attorney from the DHS bothered to file a legal brief on appeal in support of its appeal.

Today, we received the Board’s decision affirming the Immigration Judge’s finding that our client did derive citizenship from his mother, who had physical custody of our client pursuant to the FRO!

This is a special victory, because we were certain from the very beginning of our legal analysis.  It was frustrating to see the government continue to fight the logical reasoning we and the Immigration Judge presented.  As a result of the government’s appeal, our client was unable to obtain a declaration from the USCIS (through the N600 we filed) that he was a U.S. citizen.  However, now, we are hopeful that the USCIS will accept the Board’s decision and finally issue a Certificate of Citizenship to our client.

As we told our client from the beginning, unless you fight your case, you will never know whether you will win!  Thankfully, he chose to fight!

© 2010, Thaker Berowitz LLP. All rights reserved.

(1) the filing was due on any date from Friday, February 5, 2010, to Thursday, February 18, 2010, and

(2) the filing was received on or before February 19, 2010.

The grace period will apply automatically. No request or documentation is required.

Filings that arrive after February 19, 2010, are subject to normal filing deadlines. If weather is an issue for any of those filings, parties should consult the BIA Practice Manual, Chapter 3.1(b)(v), on page 34 (“Natural or manmade disasters”).

© 2010, Thaker Berowitz LLP. All rights reserved.