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| CASES OF INTEREST | |
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| IMMIGRATION: ADJUSTMENT OF STATUS ISSUES | |
| Issue: Bar to adjustment of status/ criminal conviction under INA 237(a)(2)(A)(v) | |
| Issue: Bar to adjustment of status/ material support to terrorist activity under INA § 212(a)(3)(B)(i)(I)(2002) | |
| Issue: Adjustment of status/ following-to-join INA under 203(a)(8). | |
Issue: Criminal conviction/bar to adjustment of status/INA 237(a)(2)(A)(v) |
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| In re Christopher PICKERING, Respondent, 23 I&N Dec. 621 (BIA 2003) Interim Decision #3493 |
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| Q. Does a Canadian court order quashing the respondent's conviction vitiate his conviction for immigration purposes, to grant his application for adjustment of status? |
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| A: No . INA 101(a)(48)(A) and federal court opinions applying the definition of "conviction" distinguish between convictions vacated :
(a) on the basis of a procedural or substantive defect in the underlying proceedings, whereby the respondent no longer has a "conviction"; (b) because of post-conviction events, such as rehabilitation or immigration hardships, whereby the respondent remains "convicted" for immigration purposes. The respondent's conviction for possession of a controlled substance was quashed by a Canadian court for the sole purpose of avoiding the bar to his acquisition of permanent residence. The court's action was not effective to eliminate the conviction for immigration purposes and the Immigration Judge's order of removal was upheld |
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Issue: Bar to adjustment of status/ material support to terrorist activity under INA § 212(a)(3)(B)(i)(I) (2002) |
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| In re: Charangeet Singh-Kaur, v. John Ashcroft, Attorney General, United States of America, Respondent(On Petition for Review of BIA Order) (US Court of Appeals, Third Circuit, 385 F 3rd 293(2004) |
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| Q. Could petitioner be deemed inadmissible to the United States for permanent residence under INA § 245(a) if petitioner provided material support to individuals involved in terrorist activity? |
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| A. Yes. INA § 212(a)(3)(B)(i)(I) (2002 )includes providing "material support(food and setting up shelter for people engaged in terrorist activities) within the meaning of INA § 212(a)(3)(B)(iv)(VI) (2002), ("engaged in a terrorist activity")
As a member of Babbar Khalsa and the International Sikh Youth Federation, the petitioner furnished food and shelter to individuals who he knew, or reasonably should have known, had committed or planned to commit terrorist activity. (Material support includes a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons or training for the commission of a terrorist activity to any individual who the actor knows, or reasonably should know, has committed, or plans to commit, a terrorist activity( any activity which is unlawful under the laws of the place where it is committed ,or which, if committed in the United States, would be unlawful under the laws of the United States or any State)) INA § 212(a)(3)(B)(iii),(2002) |
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Issue: Eligibility of derivative beneficiaries under INA 203(a)(8) for INA 245 adjustment when the principal alien obtains permanent residence. |
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| In re MATTER OF NAULU , Respondent, 19 I&N Jan. 1986 (BIA 2006) Interim Decision #3005 |
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| Q: Does INA 203 (a)(8) grant "accompanying or following to join" benefits to a non immigrant who has overstayed her visa once the principal alien spouse acquires permanent residence, under INA 245? |
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| Yes. A derivative beneficiary "accompanying or following to join" a principal alien under INA 203(a) (8) cannot precede the principal alien to the United States as an immigrant; however, once the principal alien acquires permanent resident status, his spouse or child is not barred as a matter of law from adjustment of status under INA 245 , by reason of having preceded the principal alien to this country as a nonimmigrant. Under section 203(a) (8) of the Act, a spouse or child who is not otherwise entitled to an immigrant status or the immediate issuance of an immigrant visa is entitled to the same preference and the same priority date or order of consideration as the principal alien, without the approval of a separate visa petition, if "accompanying or following to join" his spouse or parent. See 8 C.F.R. § 204.1(a)(4) (1985). The respondent, a 39-year-old married woman, a native and citizen of Tonga, married in 1973. Her husband was lawfully admitted to the United States for permanent residence on February 9, 1984. Although an accompanying alien cannot precede the principal alien to the United States as an immigrant , there is no bar to adjustment where, as here, a derivative beneficiary enters the United States as a nonimmigrant before the principal alien acquires permanent resident status. The right of a derivative beneficiary to permanent resident status is wholly dependent upon that of the principal alien and may not be exercised unless and until the principal alien becomes a permanent resident. However, once the principal alien gains permanent residence, his spouse or child is not precluded as a matter of law from adjusting status as a person "accompanying or following to join" by reason of having physically preceded the principal alien to this country as a nonimmigrant. However, the relationship between the principal alien and the derivative beneficiary must exist before the principal alien gains permanent resident status as well as at the time the derivative beneficiary seeks entry as an immigrant or adjustment of status. Vol. 9, Foreign Affairs Manual, Part III, 22 C.F.R. § 42.1, note 5. |
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