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Citations for ILW.COM's Seminar
"Family Immigration: The Long Route From Love To Citizenship "
Session 2 held on July 26, 2004

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From Tammy Fox-Isicoff

1. Hernandez v. Ashcroft, 2003 WL 22289896, C.A.9,2003.

  • Nonviability of alien's marriage at time of adjustment was impermissible basis for denying application for adjustment of status. Immigration and Nationality Act, 245, as amended, 8 U.S.C.A. 1255
  • IJ's determination that, because Hernandez's marriage to Refugio had completely deteriorated, the application for adjustment of status was appropriately denied as a matter of discretion. Hernandez contests this determination pointing to case law establishing that the nonviability of a marriage at the time of adjustment is an impermissible basis for denying an application for adjustment of status.
  • The first step in adjudicating a petition for adjustment of status is the nondiscretionary determination of statutory eligibility, followed by a discretionary determination regarding whether an eligible applicant is actually permitted to adjust status. Dillingham, 267 F.3d at 1003; Vasquez v. INS, 767 F.2d 598, 601 (9th Cir.1985).
2. Also see BIA decicions: Matter of Mowrer, 17 I. & N. Dec. 613, 615 (BIA 1981) ("In recent decisions, this Board has ruled that the viability of an alien's marriage can no longer be determinative of his entitlement to immigration benefits.") and Matter of Pierce, 17 I. & N. Dec. 456, 456 (BIA 1980) ("[T]he Board has altered its position in regard to the question of viable marriages

From William A. Stock

1. Regulation re: requesting appearance of a petitioner is discretionary, not mandatory: 8 CFR Sec. 103.2(b)(9)

2. Regulation re: denial of petition is mandatory if petition has been requested to appear, but has not: 8 CFR Sec. 103.2(b)(13)

3. An I-864A is never required from a sponsored immigrant for him- or herself, only for the sponsored immigrant's family members, if any: 8 CFR Sec 213a.2(c)(2)(i)(C)(1)

4. Background on Marriage Interviews: Melvin R. Solomon, "Demonstrating the Bona Fide Nature of a Marriage," I Immigration and Nationality Law Handbook 317 (AILA 2004)