Board of Immigration Appeals Rules Adjustment of Status Applicant Inadmissible After Ex-Husband Petitioner Withdrew Affidavit of Support

The Board of Immigration Appeals (BIA) ruled on an appeal of a July 7, 2017 decision in which the Immigration Judge (IJ) found the respondent, a native and citizen of Cambodia removable as a nonimmigrant whose stay in the United States extended beyond what was permitted. The IJ subsequently denied her application for adjustment of status and ordered her removal.

On November 25, 2011, the respondent entered the United States on a K-1 nonimmigrant visa and within 90 days married her fiancé, a United States citizen. In February of the next year, she filed an adjustment of status with United States Citizenship and Immigration Services (USCIS) including a Form I-864, Affidavit of Support Under Section 213A of the INA, executed by the petitioner. In July of that year, while the application was pending, the marriage between the petitioner and the respondent fell apart, and the petitioner formally withdrew his affidavit of support. By November 21, 2012, USCIS denied the respondent’s application, determining she was inadmissible as an alien who was likely to wind up becoming a public charge. After the couple’s divorce on December 20, 2012, the Department of Homeland Security (DHS) initiated removal proceedings. In those proceedings, the respondent renewed her application for adjustment of status, with a new affidavit of support from a family friend. The Immigration Judge found that though her divorce did not make her ineligible for adjustment of status, she was required to establish her admissibility into the United States by providing an affidavit of support from the original petitioner. Since the original petitioner withdrew his affidavit, she failed to demonstrate that she was not likely to become a public charge, which led to the IJ’s denial of her application.

Upon review, the primary issue facing the Board was whether it was fundamentally necessary for an adjustment of status applicant who was admitted on a valid K-1 nonimmigrant visa, adhered to the terms of the visa by entering a marriage with the petitioner from which he or she later divorced to submit an affidavit of support from the petitioner in order to establish that he or she is not inadmissible as a public charge. The BIA concluded that the legally binding affidavit of support was necessary, the couple’s divorce did not negate this necessity, and that the original petitioner cannot be substituted for another petitioner once he or she has withdrawn the petition. Furthermore, the BIA concluded that the withdrawal of the affidavit of support prior to the adjudication of the adjustment of status application means that she is inadmissible on the grounds that she is a public charge.

For more information, view the full case.

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Judge Lifts Military Roadblocks Facing Immigrants

U.S District Judge Jon Tigar prohibited the Trump administration’s policy which halted the enlistment of non-citizens into the military until the completion of lengthy background checks. The Department of Defense implemented the policy in the name of national security with the presupposition that noncitizens, “have comparatively higher rates of foreign contacts and likelihood of foreign influence.” District Judge Tigar found that the administration inadequately supported its case, failing to demonstrate an increased security threat in noncitizens, and concluded that, absent any evidence indicating the increased security risk posed by legal permanent residents, the administration’s policy was fundamentally, “arbitrary and capricious.”

Since the policy was implemented last year, non-citizens have not been permitted to begin basic training, the first step of military service, which can award non-citizens benefits such as financial aid for college and an expedited path to U.S. citizenship. District Judge Tigar issued a preliminary injunction, determining that such unfounded penalties caused irreparable harm the military careers and subsequent paths to citizenship for the affected enlistees. Furthermore, District Judge Tigar granted the plaintiff’s class certification motion and denied the government’s motion to dismiss.

For more information, view the article from Courthouse News Service.

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