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Approval Of Adjustment of Status After Divorce

by Alex Berd, Esq.

In a recent case of Choin v. Mukasey, No.s 07-70941 and 06-75823 (9th Cir.) (August 12, 2008), the Ninth Circuit Court of Appeals found nothing in the plain language of § 245(d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner's marriage ends by divorce two years later and granted Choin's petition for review.

Yelena Zotova Choin ("Choin" or "the petitioner"), a citizen of Russia, petitioned the Court of Appeals for the Ninth Circuit for review of a decision by the Board of Immigration Appeals ("BIA") that denied her application for adjustment of status and ordered her removed.

On December 4, 1998, the petitioner arrived in the United States with her two children on a K-1 visa as the fiancée of a U.S. citizen. The petitioner got married on February 20, 1999. On April 14, 1999, she filed an application to adjust her status to that of a lawful permanent resident. On April 9, 2001, the petitioner, while she was still waiting to have an interview with the USCIS, got divorced.

On August 27, 2001, the USCIS denied the application for adjustment of status because of her divorce. Later, the Department of Homeland Security began removal proceedings against her. An Immigration Judge ordered Choin removed. Choin appealed to the BIA, which dismissed her appeal.

Both the Immigration Judge ("IJ") and the BIA found Choin ineligible for adjustment of status under INA § 245(d) because of her divorce. Section 245(d) provides as follows:

The Attorney General may not adjust . . . the status of a [K visa holder] except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant . . . to the citizen who filed the [K visa petition]. 8 U.S.C. § 1255(d) (emphasis added).
The government contended that a K visa holder is ineligible to adjust her status to that of a lawful permanent resident if her marriage ends before the USCIS adjudicates her application for adjustment of status. This case turned on whether the Immigration Judge and BIA properly interpreted the "as a result of the marriage of the nonimmigrant" language in INA § 245(d).

Choin complied with the statutory framework. She entered the United States and married her fiancé within ninety days of her arrival. She filed to adjust her status to conditional permanent resident. The USCIS, however, did nothing about her application for almost two and a half years, and thus she never became a conditional permanent resident. The issue was whether Choin's divorce after over two years of marriage made her ineligible to adjust to conditional permanent resident.

The Court found that Congress limited the path to permanent residency by providing that K visa holders can only adjust to permanent resident status based on marriage to the fiancé who petitioned for them, not based on a marriage to someone else or any other basis. Congress also created the conditional permanent resident status to enable the government to gather two years of evidence about a marriage before granting full permanent resident status. This purpose of rooting out marriage fraud does not support the government's reading of the statute as a tool to remove immigrants like Choin who marry a U.S. citizen in good faith but have their marriages end in divorce from her U.S. citizen husband.

The Court of Appeals' decision in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), addressed an analogous situation. In Freeman, an immigrant woman filed an adjustment of status application based on marriage to a U.S. citizen. The USCIS took more than two and a half years to review her application, and, in the meantime, her husband died. The Court concluded that nothing in the statute indicated that a petition that was valid at the time it was submitted was "entirely voided upon the husband's death." The Court stated that "it is understandable that the immigration authorities may require a considerable amount of time to process the many applications that come before them; however, an alien's status as a qualified spouse should not turn on whether DHS happens to reach a pending application before the citizen spouse happens to die."

As in Freeman, the Court here similarly found nothing in the plain language of § 245(d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner's marriage ends by divorce two years later. The purpose and context of § 245(d) also do not support the government's reading of the statute that requires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of status languishes in the agency's file cabinet. The Court held that the BIA's reading of INA § 245(d) was incorrect, and granted Choin's petition for review.

The significance of this decision cannot be overestimated since it changes the law at least in the Ninth Circuit. Until this case, legal dissolution of a marriage meant an automatic denial of the pending adjustment of status application, whether prior to the interview and thereafter.

For example, in the Matter of Boromand, 17 I & N Dec. 450 (BIA 1980), the BIA stated that Matter of Sosa, 15 I&N Dec. 572 (BIA 1976) "remains valid precedent to the extent that it stands for the proposition that an alien seeking admission as an immigrant may be found inadmissible if the marriage upon which his visa petition was based has been legally terminated."

The USCIS Adjudicator's Field Manual reflects the cases supporting an automatic denial of the pending adjustment of status application upon the applicant's divorce:

23.5(d) Relative-Based Adjustment Cases
If the petition is based on a marital relationship, question the party or parties sufficiently to satisfy yourself that the relationship continues to exist. If it has been terminated through annulment, divorce, or death, revoke the petition.

26.2(a)(3) In Matter of Boromand, 17 I & N 450 (BIA 1980), the Board ruled that in order to deny a 245 adjustment or to subsequently rescind lawful permanent residence based on a marriage, the evidence must establish that the marriage was a sham or fraudulent or that it was legally dissolved at the time of the adjustment.

The BIA went further and decided to view a legal separation just as divorce. In the Matter of Lenning, 17 I & N Dec. 476 (BIA 1980), the BIA stated that "a visa petition filed on behalf of an alien spouse is properly denied where the parties legally separated pursuant to the terms of a formal, written separation agreement notwithstanding fact that their marriage was entered into in good faith and had not been finally dissolved by an absolute divorce decree. Chan v. Bell, 464 F.Supp. 125 (D.D.C. 1978), and Matter of McKee, Interim Decision 2782 (BIA 1980), distinguished." The Board distinguished that case because of the New York State matrimonial law and stated that "the existence of a valid legal separation presents an altogether different set of considerations." Ralph Farb, the Board Member, stated in his dissent that: "Although we said in McKee that the separation of spouses is a relevant fact only as evidence, and that the only ultimate fact for petitioner to establish is that the marriage was bona fide in its inception, the Board is once again fatally attracted to the proposition that it will be carrying out the will of Congress if it strikes down petitions when granting them would not serve to retain and unite family relations. It justifies this by suggesting that a written separation agreement is a big step closer to dissolution of a marriage than uncontracted separation is. It also points to a peculiarity of New York law that when parties have been separated for over one year following execution of a separation agreement either may sue for divorce on that ground alone. Domestic Relations Law, section 170(6)." He concluded his opinion by stating that "dazzled by the cleverness of the phrase "conversion divorce," the Board blunders into a repetition of its pre-McKee error."

The USCIS Adjudicator's Field Manual reflected on the Lenning in:

21.3(a)(2)(G) Legal Separation vs. Separate Cohabitation, mirrors the above decision: You may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties entered into a valid marriage, have not obtained a legal separation, but simply reside separately, the petition may not be denied merely because of such separate cohabitation. The issue of separate cohabitation is relevant, however, in determining the intent of the parties at the time of the marriage.

The reasoning in the current case was not limited to K-1 cases and should equally be applicable to any pending marriage-based adjustment of status application where divorce took place prior to the approval. Moreover, the Choin Court did not condition the outcome of this case on the USCIS's delay in processing the application, even though it was a contributing factor in the present case.

As the law is incorrectly applied now, upon divorce taking place prior to the adjustment approval, the alien divorcee almost always finds himself or herself out of status, unless he or she maintained (typically L-1 or H-1B) non-immigrant status. Naturally, in absence of any other option and frustrated by the prolonged USCIS processing times, which many times may have contributed to the deteriorating marriage and the applicant's inability to receive the Lawful Permanent Residence prior to the dissolution of the good faith marriage, the only legal viable option that remains for the applicants in order to adjust the status, is to apply for VAWA within 2 years of the divorce decree. Often, such VAWA cases are not supported by strong evidence and get denied.

It is almost inevitable that litigation in other Circuits will be required to force the BIA and USCIS to adapt the correct legal principle, namely that divorce does not lead to an automatic denial of the pending adjustment of status application.

About The Author

Alex Berd, Esq. is a graduate of Liverpool Law School and Columbia Law School, a New York and Israeli Attorney and an English Solicitor, and a partner at Berd & Klauss, PLLC in New York City ( The firm represents corporations and individuals in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, deportation defense and asylum.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.