Iouri Petrov v. John Ashcroft

U.S. Court of Appeals for the Ninth Circuit

Filed March 25, 2004

The Petitioner, Iouri Petrov, a native and citizen of Russia, petitioned the court for a review of a Board of Immigration Appeals (BIA) order that affirmed an Immigration Judge’s denial to reopen his deportation proceedings.  The deportation proceedings were held in absentia when Petrov failed to appear for the hearing.

The Immigration Judge denied Petrov’s motion to reopen the case because the Order to Show Cause was mailed to Petrov’s last known address after Petrov had moved and failed to notify the court of his new address.

The Ninth Circuit found that the BIA erred in its decision to deny the motion to reopen because it did not consider whether Petrov had received the notification of his obligation to notify the court of a change of address.  The Ninth Circuit, therefore, granted the petition for review.

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Jhon Jairo Lasprilla v. John Ashcroft

U.S. Court of Appeals for the First Circuit

April 22, 2004

Jhon Jairo Lasprilla, a native and citizen of Colombia, petitioned the court for a review of a Board of Immigration Appeals (BIA) order denying his motion to reconsider the denial of his earlier motion to reopen.  Lasprilla wanted to reopen his case to apply for adjustment of status based on his marriage to a US citizen.

Lasprilla entered the US without inspection in 1994.  In September 1995, INS issued Lasprilla an Order to Show Cause as a deportable immigrant.  Lasprilla filed a petition for asylum and withholding of removal, which was denied in October 1997.  He appealed the decision, which was denied by the BIA without opinion in August 2002.  Lasprilla filed his motion to reopen with the BIA that same month so that he could apply for an adjustment of status.  The BIA denied his motion, saying that Lasprilla had not demonstrated eligibility for adjustment under  “grandfathering” provision of the Immigration and Nationality Act (INA).  Lasprilla filed a second motion to reopen and the BIA too denied this in March 2003.

Lasprilla married a US citizen in September 1996, while his deportation proceedings were pending.  In March 1997, his wife filed a visa petition on his behalf.  In July 1997, the petition was denied because Lasprilla’s wife failed to respond to INS requests for additional evidence about their marriage.  Lasprilla divorced his wife in May 2001, while the BIA decision to his appeal was pending.

When Lasprilla filed the first motion to reopen, he did not present enough evidence to demonstrate that he was eligible for an adjustment of status.  His second motion argued that he was eligible to adjust his status because of the visa application filed by his US citizen wife under the grandfathering provision of the INA.  This grandfathering provision allows immigrants who entered the US without inspection to be eligible for an adjustment of status if the immigrant is a beneficiary of a visa petition filed on or before April 30, 2001 and that the petition was “approvable when filed.”

The Respondent, Attorney General John Ashcroft, contended that Lasprilla was not eligible under the grandfathering clause because the visa petition, while filed before April 30, 2001, was not “approvable when filed” because Lasprilla married his US citizen wife while he was in deportation proceedings.  8 USC § 1154(g) states that a petition for “immediate relative status or preference status by reason of marriage” which was entered into while administrative or judicial proceedings were pending “may not be approved.” 

The First Circuit stated that Lasprilla could have demonstrated that he was eligible for an exception to this regulation, found at 8 USC § 1255(e)(3), wherein he would have to show that he entered into the marriage in “good faith and ... not entered into for the purpose of procuring the alien’s admission as an immigrant.”  However, Lasprilla did not provide evidence that he was within the exception when given two opportunities to do so.

The First Circuit, therefore, affirmed the BIA denial to reconsider the denial of the motion to reopen.