O. VAZQUEZ

Cite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754

Matter of O. VAZQUEZ, Respondent

Decided June 8, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Act,

8 U.S.C. § 1153(h)(1)(A) (2006), by filing an application for adjustment of status or

by showing that there are other extraordinary circumstances in the case, particularly those

where the failure to timely file was due to circumstances beyond the alien’s control.

FOR RESPONDENT: Jose Bernardo Lovo, Esquire, Dallas, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Margot Merrill-Johnson,

Assistant Chief Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MANN, Board Members.

MALPHRUS, Board Member:

In a decision dated September 15, 2008, an Immigration Judge found the

respondent inadmissible under section 212(a)(6)(A)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), and denied his application

for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i)

(2006). The respondent has appealed from that decision. The Department

of Homeland Security (“DHS”) has filed a brief in opposition. The appeal will

be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a 28-year-old native and citizen of Mexico.

On September 9, 1996, his father filed a Form I-130 (Petition for Alien

Relative) on behalf of his mother, of which the respondent was a derivative

beneficiary. The visa petition was approved on November 18, 1996, and

an immigrant visa number became available to the respondent on March 1,

2004. Over a year later, on October 14, 2005, when he was 21 years and

9 months of age, the respondent first filed his Form I-485 (Application

to Register Permanent Residence or Adjust Status) with the U.S. Citizenship

and Immigration Services (“USCIS”).

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The respondent’s application for adjustment of status was initially denied

by the USCIS on the basis of an undisclosed criminal conviction. The

respondent sought reopening, and on July 25, 2007, the USCIS denied the

application on the ground that the respondent had “aged out” of his derivative

beneficiary status. The USCIS concluded that the respondent was not eligible

for the ameliorative provisions of the Child Status Protection Act, Pub. L. No.

107-208, 116 Stat. 927 (2002) (“CSPA”), because he did not file his

application for adjustment of status within 1 year of the visa number becoming

available and therefore had not “sought to acquire” lawful permanent resident

status within a year of visa availability, as required by section 203(h)(1)(A)

of the Act, 8 U.S.C. § 1153(h)(1)(A) (2006).1

The respondent was placed in removal proceedings and was charged

as an alien who was present in the United States without being admitted

or paroled. At a hearing before the Immigration Judge, he conceded

removability and applied for adjustment of status, arguing that he sought

to acquire permanent residence within 1 year of the visa number becoming

available because his parents consulted with a notario about filing

an application within that period. Concluding that the phrase “sought

to acquire” means an actual filing with the USCIS, the Immigration Judge

denied the respondent’s application for adjustment and ordered him removed

to Mexico.

II. ANALYSIS

Section 203(h)(1)(A) of the Act, which was enacted as part of the CSPA,

provides a mechanism for an applicant who has aged out to nevertheless

maintain the status of a “child” under the Act. An applicant can take

advantage of the age calculation mechanism in this section “but only if the

alien has sought to acquire the status of an alien lawfully admitted for

1

Section 203(h)(1) of the Act provides, in pertinent part, as follows:

Rules for Determining Whether Certain Aliens Are Children

(1) In general

For purposes of [qualified immigrants or children following to join],

a determination of whether an alien satisfies the age requirement [to qualify as a child

under section 101(b)(1) of the Act] shall be made using—

(A) the age of the alien on . . . the date on which an immigrant visa number

became available for the alien’s parent[], but only if the alien has sought

to acquire the status of an alien lawfully admitted for permanent residence within

one year of such availability . . . .

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permanent residence within one year of . . . availability” of an immigrant visa

number. Section 203(h)(1)(A) of the Act (emphasis added).

In interpreting the phrase “sought to acquire,” we must first determine

whether it has a plain and unambiguous meaning. See Robinson v. Shell Oil

Co., 519 U.S. 337, 340 (1997) (“Our first step in interpreting a statute

is to determine whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.”). Analyzing

whether language is plain and unambiguous is “determined by reference to the

language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.” Id. at 341. Even when considered

in light of the statutory context, the phrase “sought to acquire” does not have

a plain and unambiguous meaning. It is sui generis in the Act and is not

a legal term of art in applicable regulations or administrative or judicial

decisions. However, the context of this statutory provision does explain why

Congress may have chosen to employ an ambiguous term.

The respondent contends that the plain meaning of “sought to acquire”

must encompass a range of actions broader than “filing” an application for

adjustment of status because Congress could simply have used the term

“filed,” as it has in other sections in the Act. See, e.g., sections 208(a)(2)(B),

245(a) of the Act, 8 U.S.C. §§ 1158(a)(2)(B), 1255(a) (2006). This argument,

viewed in isolation, has significant force. However, we agree with the DHS

that the flaw in this approach is that section 203(h) applies to the DHS and the

Department of State (“DOS”), both of which adjudicate requests for immigrant

status.

Generally speaking, the DOS (through its consular service) adjudicates

applications for immigrant visas from outside the United States, whereas the

DHS (through the USCIS) adjudicates requests for adjustment of status from

within the country. Thus, in drafting the CSPA, Congress needed to use

language that would cover the different processes employed by the DOS and

the DHS. The word “filed” is not the term ordinarily employed by the DOS

to refer to initiation of the visa application process. Rather, the DOS

regulations use the term “submit” when referring to a Form DS-230

(Application for Immigrant Visa and Alien Registration). See 22 C.F.R.

§ 42.63 (2012). This regulation obligates the consular officer to “ensure that

Form DS-230 or Form DS-260 and all other forms an alien is required

to submit are fully and properly completed in accordance with the applicable

regulations and instructions.” 22 C.F.R. § 42.63(b) (emphasis added).2

2

Form DS-260 is the online version of the immigrant visa application.

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Likewise, 22 C.F.R. § 42.63(c) requires the “submission of additional

information” by the applicant when the consular officer deems it necessary.

(Emphasis added.)

This is not to suggest that the DOS exclusively uses the term “submit”

(or a variation of that word) in its regulations or that it does not use the term

“filed” at all. The DOS does use the term “filing” in a regulation discussing

registration. See 22 C.F.R. § 42.67(b) (“The alien shall be considered

to be registered for the purposes of INA 221(b) and 203(g) upon the filing

of Form DS-230 or Form DS-260, when duly executed, or the transmission

by the Department to the alien of a notification of the availability

of an immigrant visa, whichever occurs first.” (emphasis added)). Notably,

this use of the term “filing” attaches to events relatively late in the process

of acquiring an immigrant visa—well after the “submission” referred

to in 22 C.F.R. § 42.63. Indeed, the DOS’s use of the term “filing” made

it difficult to use that word in section 203(h)(1)(A) of the Act without the risk

of requiring an alien to wait until the end of the application process

to essentially stop the 1-year clock under the CSPA.

Because of the differences in usage between the DOS and DHS

regulations, it was reasonable for Congress to avoid using the word “filed”

in section 203(h)(1)(A) of the Act. This different terminology further supports

our conclusion that the term “sought to acquire” is ambiguous. We must

therefore apply a reasonable interpretation of that language. See Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984);

see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 980 (2005) (“[A]mbiguities in statutes within an agency’s jurisdiction

to administer are delegations of authority to the agency to fill the statutory gap

in reasonable fashion. Filling these gaps . . . involves difficult policy choices

that agencies are better equipped to make than courts.”).

To reasonably interpret the meaning of the phrase “sought to acquire,”

we must look at section 203(h)(1)(A) of the Act in its entirety. See K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). A key phrase of this section

establishes the amount of time afforded to the alien to take advantage

of “age-out” protection. Congress provided that an alien would have 1 year

from the date of visa availability to qualify. In our view, this is a significant

amount of time during which an alien can obtain legal assistance, acquire

necessary documentation, and execute the appropriate forms. Since Congress

has afforded aliens a full year, rather than a mere 30 or 60 days, to take

advantage of the age-out rule, it is reasonable to expect the proper filing

of an application, when it comes to DHS cases, as a way to unquestionably

satisfy the “sought to acquire” element under section 203(h)(1)(A) of the Act.

This interpretation of the statute comports with the meaning of the words

“sought” and “acquire.” Obviously, filing an application for adjustment

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of status is a critical step that may allow one, if otherwise found to be eligible,

to “acquire” lawful permanent resident status on the basis of an available

immigrant visa. Interpreting the statute in this manner also “promotes

consistency and predictability, which are important principles in immigration

law.” Matter of C-T-L-, 25 I&N Dec. 341, 347 (BIA 2010).

While the proper filing of an application for adjustment of status clearly

meets the “sought to acquire” provision in section 203(h)(1)(A) of the Act, the

statute may also be satisfied by other actions that fall short of filing. An alien

may satisfy the “sought to acquire” requirement by presenting evidence that

persuasively establishes that he or she submitted an application to the

appropriate agency within the DHS in the manner that the application provides,

but it was rejected for a procedural or technical reason, such as the

absence of a signature. We note that in the context of asylum applications,

if an application was filed prior to the expiration of the 1-year deadline but was

rejected and returned as not properly filed, the applicant’s subsequent failure

to meet the deadline may be excused if the corrected application is filed within

a reasonable period after its return. See 8 C.F.R. § 1208.4(a)(5)(v) (2012).

An application for adjustment would be considered timely filed for purposes

of section 203(h)(1)(A) of the Act in similar circumstances.

Moreover, an alien might also satisfy the “sought to acquire” provision

by showing that there are other extraordinary circumstances in the case,

particularly those where the failure to timely file was due to circumstances

beyond the alien’s control.3 In that regard, an alien may be able to show that

he or she paid an attorney to assist in filing a timely adjustment application and

completed and executed the application with the attorney’s aid prior to the

deadline, but the attorney then failed to take the ministerial step of timely filing

the application with the appropriate agency, thereby effectively preventing the

3

We find support for such an “extraordinary circumstances” standard from the provisions

of the Act governing the issuance of immigrant visas. Under section 203(g) of the Act,

an alien generally must apply for an immigrant visa within 1 year of State Department

notification of the availability of a visa to prevent termination of the visa. However, there

is an exception to termination if the alien can show, within 2 years of notification, that his

or her “failure to apply was due to circumstances beyond the alien’s control.” Section

203(g) of the Act. While the DOS consular process and the DHS adjustment process differ,

there are similarities between them. For example, as a general rule an alien applying for

an immigrant visa through consular processing or one seeking to maintain his or her child

status under the CSPA (whether through the DOS or the DHS) has 1 year to apply. Sound

policy reasons support encouraging compliance with a 1-year period for both the DOS visa

issuing process and the CSPA’s procedures for maintaining one’s status as a “child.” In the

former case, unused visas can be recaptured and reallocated to others awaiting such visas;

in the latter, those who seek the ameliorative effects of the CSPA are encouraged to act with

reasonable diligence to maintain the benefit of a “child” status.

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alien from filing. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),

aff’d, 857 F.2d 10 (1st Cir. 1988); see also Mai v. Gonzales, 473 F.3d 162,

165 (5th Cir. 2006).

However, actions that do not approximate the filing of an application

or extraordinary circumstances, such as contacting an attorney about initiating

the process for obtaining a visa that has become available, are insufficient

to meet the requirements of section 203(h)(1)(A) of the Act. The alternative

suggested by the respondent, that the deadline could be satisfied by simply

contacting an organization or an attorney for legal advice, is impractical and

leaves open many questions, including how substantive the contact would need

to be and what level of proof would need to be provided regarding

such contact. See Negusie v. Holder, 555 U.S. 511, 524 (2009) (stating that

the Board’s development of a reasoned interpretation may be “influenced

by how practical, or impractical, the standard would be in terms of its

application to specific cases”).

Recently, the United States Court of Appeals for the Eleventh Circuit stated

that the phrase “sought to acquire” does not require that an alien actually file

or submit an application but rather can encompass “substantial steps taken

toward the filing of the application for permanent residency . . . within the one

year period.” Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1302, 1305 (11th Cir.

2011).4 In its analysis of section 203(h)(1)(A) of the Act, the Eleventh Circuit

discussed three unpublished Board decisions that applied a broad interpretation

of the phrase “sought to acquire.” Id. at 1303-05.

However, the Eleventh Circuit did not reference other unpublished

Board decisions that interpreted “sought to acquire” more restrictively.5

Moreover, neither Tovar nor the unpublished Board decisions it cited

considered the central, and in our view convincing, argument discussed above:

that the inherent vagueness of the phrase “sought to acquire” reflects that

section 203(h)(1) of the Act applies to the processing of applications by two

separate agencies, which use different nomenclatures.

In any event, the Eleventh Circuit ultimately held that the alien’s mere

requests for a visa and for reinstatement of a visa registration with the

Department of State through the National Visa Center (“NVC”) did not

constitute even a substantial step toward the filing of an application for

permanent residence. Tovar v. U.S. Att’y Gen., 646 F.3d at 1305. In that case,

the alien did not make any effort to file an adjustment application in a timely

4

Tovar v. U.S. Attorney General, 646 F.3d 1300, is not binding in this case, which arises

in the jurisdiction of the Fifth Circuit. Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).

5

In any event, we are not bound by our decisions that have not been designated as Board

precedents. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991); see also

Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011); 8 C.F.R. § 1003.1(g) (2012).

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manner or return to Mexico to pursue consular processing of his immigrant

visa. He also did not claim that he was prevented from filing by circumstances

beyond his control. Instead, the alien only contacted the NVC to request that

his visa petition not be terminated. In fact, the respondent then waited 3 years

from the date the visa number became available to file an adjustment

application. Although we respectfully do not agree that “substantial steps”

is the proper standard and do not adopt all of the Eleventh Circuit’s reasoning

and analysis, we would reach the same result given the facts of that case.

In summary, we conclude that an alien may satisfy the “sought to acquire”

provision of section 203(h)(1)(A) of the Act by properly filing the application

for adjustment of status with the DHS. Additionally, the alien may meet the

requirement by establishing, through persuasive evidence, that an application

he or she submitted to the appropriate agency was rejected for a procedural

or technical reason or that there were other extraordinary circumstances,

particularly those where the failure to timely file was due to circumstances

beyond the alien’s control. The respondent, through his father, merely sought

legal advice and did not actually file his adjustment application within 1 year

of visa availability. We conclude that he did not satisfy the “sought

to acquire” requirement of section 203(h)(1)(A) of the Act and thus is not

eligible to adjust his status to that of a lawful permanent resident

as a derivative beneficiary. Accordingly, the respondent’s appeal will

be dismissed.

ORDER: The appeal is dismissed.

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