Marriage-Based Applicant Eligible for I-485 Approval Even after Divorce  Posted Sep 05, 2008
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On August 12, 2008, in Choin v. Mukasey, the U.S. Court of Appeals for the Ninth Circuit ordered the Board of Immigration Appeals (BIA) to consider Yelena Choin’s Form I-485 Application for Adjustment of Status based upon marriage, even though she was no longer married to her U.S.-citizen husband. Generally, a foreign national spouse who is filing for permanent residence based upon marriage to a U.S. citizen must still be married at the time of the green card approval. The Court found an exception to this for spouses who enter the U.S. on the K-1 fiancé/e visa. This interpretation is limited to a K-1 fiancé/e of a U.S. citizen. There is a specific section of law that addresses the adjustment of status of K-1s and it is the wording of that section that led to the conclusion reached by the Court.
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History of the Case and Decision Approving I-485
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The Choin case involved a woman who originally entered the United States lawfully on a K-1 fiancée visa and married her U.S. citizen sponsor. As readers of MurthyDotCom and the MurthyBulletin may recall from our Overview: K Visas for Fiancé/es and Spouses of USCs, the law provides that a foreign national engaged to a U.S. citizen can enter the United States in K-1 status for 90 days, within which time the couple is to marry. Based on that marriage, the foreign national spouse is eligible to file the I-485 to become a lawful permanent resident (LPR), commonly referred to as a green card holder. This is exactly what occurred in this case.
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However, before the I-485 was acted upon, Ms. Choin and her husband divorced. The divorce occurred on April 9, 2001. The USCIS denied the adjustment or I-485 on August 27, 2001 because of the divorce. Thereafter, Ms. Choin was placed in removal (formerly deportation) proceedings. Ms. Choin fought the effort to remove her from the U.S., first appealing the decision of the Immigration Judge (IJ) to the Board of Immigration Appeals (BIA) and ultimately filing an appeal with the Ninth Circuit Court of Appeals. On August 12, 2008, the Court ruled for her and ordered the BIA to process her I-485 consistent with their interpretation of the law, allowing her to become a Conditional LPR, valid for two years, notwithstanding the divorce.
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Court's Opinion Requiring I-485 Approval based on 245(d) of INA
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The Court’s opinion was based on the language and interpretation of Section 245(d) of the Immigration and Nationality Act (INA). This section specifies that a foreign national who enters the U.S. in K-1 status can only adjust to conditional LPR status (and not regular LPR status) by filing an I-485 application based on marriage to the U.S.-citizen sponsor of the K-1. Conditional LPR status is valid for two years, unless the conditions are removed based upon the filing of an application to remove the conditions. (In employment-based cases, spouses receive regular, not conditional, permanent resident status, regardless of the duration of the marriage.)
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The Court explained that Congress passed the law regarding conditional permanent resident status in order to discourage and prevent marriage fraud. Congress created a special requirement that a Conditional LPR file an Application to Remove the Conditions (I-751) within set timeframes. The law allows a Conditional LPR to file the I-751 without the U.S. citizen, if divorced, based upon proof that the marriage was entered into in good faith. The Court found this exception to the I-751 joint filing requirement as allowing its generous reading of Section 245(d) when the same standard could also be applied to the initial stage of filing the I-485 application. It ruled that Ms. Choin is still eligible for approval of her I-485 and ordered the BIA to process her case consistently with its ruling.
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Conclusion : LPR/GC Approval for One Entering as Fiancé/e
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The Court’s opinion in Choin v. Mukasey reflects the important lessons that an agency decision can be overturned by a higher court and that challenging a negative decision can result in a favorable ruling. However, one of the reasons that the Federal Court was able to use its interpretation of the law is that the BIA decision was not particularly detailed and, thus, it was not given deference that might otherwise have been given to a lower court's interpretation of the law. Generally, under immigration law, it is risky for a person to assume that s/he can obtain any immigration benefit based upon a family relationship, if the family relationship no longer exists. We at the Murthy Law Firm again want to emphasize that this decision was limited to a K-1 fiancé/e-based adjustment of status, which is controlled by a different subsection of the law from other types of adjustment of status in family- or employment-based cases.