Arias, Martha L.

9100 S. Dadeland Blvd., Ste. 1500

Miami, FL 33156
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 2000
Fals Church, Virginia 20530
OHS/ICE Office of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
Name: RODRIGUEZ RAMOS, BYRON A 089-933-665
Date of this notice: 10/23/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
DO Ct
Donna Carr
Chief Clerk
Userteam: Docket
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Byron Rodriguez-Ramos, A089 933 665 (BIA Oct. 23, 2014)
U.S. Department of Justce
Executive Offce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Chuch, Virginia 20530
File: A089 933 665 - Miai, Florida Date:
ocr
2azo1t
I re: BYRON RODRGUEZ-RAMOS, a.k.a. Byron Rodriguez, a.k.a. Byron Alexis Rodriguez
Barera
IN REMOVAL PROCEEDINGS
APP
E
AL AD MOTION
ON BEHALF OF RESPONDENT: Maha L. Aas, Esquire
CHRGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] -
Present without beig admitted or paoled (conceded)
APPLICATION: Adjustent of status; continuace; administative closure; remad
The respondent, a native and citizen of Honduas, appeals fom the Immigaton Judge's
November 5, 2012, decision pretermitting his application fr adjustent of status pursut to
section 245(i) of the Immigration ad Nationaity Act (Act), 8 U.S.C. 1255(i), based on a
approved Alien Relatve Pettion (Form I-130) fled on his behalf by his United States citizen
wife (l.J. at 2; Tr. at 89). 1 The respondent aso seeks remad of te record so that the
Immigation Judge may continue or administratively close his case while he pursues
a provisional unlawfl presence waver befre United States Citizenship ad Immigation
Service (USCIS) (1.J. at 2; Tr. at 89). His appeal will be dismissed, but his moton to remand
will be grated and te record will be remanded to te Immigation Judge fr fther
proceedings.
We review fnding of fct, including credibilit fndings, fr clea eror. See 8 C.F.R.
1003.l(d)(i); see also Mater of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Mater o/S-H-, 23 I&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgent, and all other issues
de novo. See 8 C.F .R. 1003 .1 ( d)(ii).
The respondent mantains on appeal tat he is eligible to adjust his stats under section 245(i)
of the Act by virue of a visa petition fled on his mother's behalf in 1997 by her then-husband,
a United States citizen (Resp. Br. at 3-4, 5-16; l.J. at 3). The respondent assers tat because he
was a minor child when the petition was fled, he qualifes as a gradftered alien under that
pettion (Resp. Br. at 3-4; 5-16).
1 The respondent ha submitted the visa petition approval (Resp. July 25, 2012, Docuentary
Submission at Tab A).
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Byron Rodriguez-Ramos, A089 933 665 (BIA Oct. 23, 2014)
'
.
A089 933 665
We agee with te Immigraton Judge that the respondent is statutorily ieligible fr
adjustent of stats pursuant to section 245(i) of the Act (l.J. at 4). As we explained in
Matter of Ric, 25 I&N Dec. 717, 719 (BIA 2012), tere ae two categories of gadftered
aliens according to the regulations. The frst category, principal gandfthered aliens, ae te
direct benefciaes of qualifing visa petitions or labor certifcations. Id.; see also 8 C.F .R.
245.lO(a)(i) The second category, derivative gradfthered aliens, are the dependent spouses
ad children of principal gandfthered aliens, "if eligible to receive a visa under section 203( d)
of te Act, 8 U.S.C. 1153(d)." 8 C.F.R. 245.lO(a)(ii); see also Matter of Estada, 26 l&N
Dec. 180, 184 (BIA 2013); Mater of Ilic, supra, at 719. Te respondent claims he qualifes fr
gandfatering under the second category (see generally Resp. Br.).
We agee with the Immigration Judge's determination that the respondent wa never "eligible
to receive a visa under section 203( d) of te Act" as a derivative benefcia on his moter's
visa petiton because his mother wa a immediate relative of te petitioner (l.J. at 3 ).
See secton 20 I (b )(2)(A)(i) of the Act (defning te ter immediate relative as including the
spouse of United States citizens); see also 8 C.F.R. 204.2(a)(4) (stating, in relevant part, tat
"a child of an aipn approved fr clasifcation as an immediate relative spouse is not eligible fr
derivative clasifcation and must have a separate petition fled on his or her behalf'). Because
the respondent would have qualifed as an immediate relative of his step-fther, he required his
own visa petition. See sections 20l{)(2)(A)(i), 8 U.S.C. 115l(b)(2)(A)(i) (stating that
childen of United States citizens are considered imediate relatives); and lOl(b)(l)(B),
8 U.S.C. llOl(b)(l)(B) of the Act (defning te ter child to include stepchldren); see also
8 C.F.R. 204.2(a)(4).
We are upersuaded by te respondent's arguent that he was eligible to receive a visa
uder section 203(d) of the Act. Specifcally, he maints that a plain readig of te statte, the
relevant regulations, and a policy memoradum fom USCIS support a concluion tat he met
the defnition of a child at te time te petition was fled, and he was not "oterise eligible to
receive a visa" under any of the enuerated subsections in section 203(d) of the Act
(Resp. Br. at 5, 8-16). However, section 203(d) of te Act does not apply to te factual scenario
presented in ths case. The exception described at section 203(d) of te Act must be read in
context. See e.g. Roberts v. Sea-Land Services, Inc., 132 S. Ct. 1350, 1357 (2012) ("Statutory
laguage, however, ' canot be coned in a vacuum. It is a fdamental caon of statutor
constction that te words of a statute must be read in teir context and with a view to their
place in the overall statutor scheme."') (quoting Davis v. Michigan Dept. of Treasur,
489 U.S. 803, 809 (1989). Here, section 203 of the Act describes visas alloted uder te
prefrence allocation system, not visas available to imediate relatives uder section 201 of the
Act. Thus, section 203( d) of te Act caes out a exception fr prefrence category
benefciaries discussed witi that section, and does not include imediate relatives witin tat
exception. Furterore, there no analogous provision uder section 201 of te Act fr
imediate relatives, but as discussed above, ad the reglations expressly state tat tere ae no
derivative benefciaries fr immediate relatives. See 8 C.F.R. 240.2(a)(4); see also Matter of Le,
25 l&N Dec. 541 (BIA 2011) (noting that ''te statute does not provide fr derivatives of
imediate relatives").
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Byron Rodriguez-Ramos, A089 933 665 (BIA Oct. 23, 2014)
A089 933 665
Because we conclude tat the respondent is not witin te class of persons qualifing fr
potential grandfthering, we need not address his challenges to the Immigation Judge's
alterative fndings with regard to wheter the pettion in question was approvable when fled
(1.J. at 3-4; Resp. Br. at 7-8).
Tung to te respondent's request fr remad of te record to allow him to pursue
adinistative closure, we note tat, duing the pendency of this appeal, a regulation was
promulgated, allowing certan aliens to seek provisional waivers of teir uaw presence while
in the United States where such aliens ae pusuing consula processing a te immediate
relatives of United States citzens. See 8 C.F.R. 212.7(e); see also Provisional Unlawfl
Presence Waivers of Inadmissibilit for Certain Immediate Relatives, Final Rule, 78 Fed. Reg.
536 (Jaua 3, 2013). Altough an alien in removal proceedings is generally bared fom
pursuing te provisional waiver, te perinent regulation ad related regulator history expressly
contemplate te possible gat of administative closue (fllowed by a request fr terination or
dismissal of proceedings witout prejudice where the waiver is ultimately approved) fr aliens in
removal proceedings who would oterise be eligible to apply fr provisiona waivers.
See 8 C.F.R. 212.7(e)(4)(v); Provisional Unlawfl Presence Waivers of Inadmissibilit
for Certain Immediate Relatives, supra, at 538.
We will remad the record fr consideration of the respondent's request fr administative
closure in light of ts new regulation ad our decision in Matter of Avetisyan, 25 l&N Dec.
688 (BIA 2012). However, in evaluating whether administative closue is war ated, the
Imigation Judge shoud determine wheter the respondent, upon his depae, would
be inadmissible under ay groud other tha section 212(a)(9)(B) of te Act, 8 U.S.C.
1182(a)(9)(B). In tis regard, the new regulation contemplates a provisional waiver fr those
aiens who would be inadmissible only due to accrual of unlawfl presence uder section
212(a)(9)(B) of the Act. See Provisional Unlawfl Presence Waivers of Inadmissibilit for
Certain Immediate Relatives, supra, at 545.
Accordingly, te fllowing orders will be entered.
ORDER: The respondent's appeal is dismissed.
FURTHER ORDER: The respondent's motion to remad is grated.
FURTHER ORDER: The record is remaded to te I igation Judge fr fer
proceedings consistent with this opinion.
3
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Byron Rodriguez-Ramos, A089 933 665 (BIA Oct. 23, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA
File: A089-933-665 November 5, 2012
In the Matter of
BYRON RODRIGUEZ RAMOS IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: 212 (a) ( 6) (A) (i) of the Immigration and
Nationality Act as amended as an alien present in
the United States without being admitted or
paroled.
APPLICATIONS: Adjustment of status under Section 245(i) of the
Imigration and Nationality Act.
ON BEHALF OF RESPONDENT: MARTHA ARIAS, ESQUIRE
9100 South Dade Land Boulevard
Suite 1500
Miami, Florida 33156
ON BEHALF OF OHS: ANA MARIA CANDELA, ESQUIRE
Assistant Chief Counsel
Imigration and Customs Enforcement
333 South Miami Avenue
Second Floor
Miami, Florida 33130
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent in these proceedings is a 26-year-old
married male native and citizen of Honduras. The Department of
1
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Homeland Security initiated removal proceeding against the
respondent on February 24, 2009, when it issued a Notice to
Appear alleging that the respondent was subject to removal from
the United States as a native and citizen of Honduras who had
entered the United States on an unknown date at an unknown
place, and was not then admitted or paroled after inspection by
an Imigration officer. The Court notes that the Notice to
Appear was personally served on the respondent on February 24,
2009. Therefore, the Court does find proper service. The
Notice to Appear has been marked and admitted into the record as
Exhibit No. 1 in these proceedings.
At a subsequent Master Calendar hearing, the respondent did
admit the allegations contained in the Notice to Appear, and
conceded removability as charged. Honduras has been designated
as the country for purposes of removal. The Court finds that
the issue of removability has been established by evidence that
is clear and convincing. The only issue which remains pending
before the Court concerns the respondent's applications for
relief from removal. The respondent has submitted an
application for adjustment of status under Section 245{i) of the
Act. The respondent does have an approved I-130 visa petition
filed by his United States citizen wife. The respondent,
however, is an alien present in the United States without being
admitted or paroled. Therefore he requires 245(i) eligibility
in order to be eligible to adjust status in the United States.
A089-933-665 2 November 5, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
The respondent, through his attorney advised the Court that the
respondent would be seeking 245(i) adjustment of status based on
an I-130 that had been previously filed on behalf of the
respondent's mother in 1997 when the respondent was still a
minor child. The Court notes that although there was a copy of
the I-130 filed on behalf of the respondent's mother, there was
no evidence presented that the I-130 filed on behalf of the
respondent's mother by her then United States citizen husband
was approved. The Court notes that in order for the
grandfathering to take place, the application has to have been
approve-able when filed. In this case there is no evidence that
the application was approve-able when filed. In this case,
!': I.`.1`..! the issue is determined through a different
set of facts, whether or not the respondent's mother's
application was approve-able as filed, we do not even get to
that, because the Court finds that in this case the respondent
is not statutorily eligible for adjustment of status under
245(i) . The Court finds that the respondent is not eligible to
adjust his status to that of a lawful permanent resident under
Section 245(i) of the Immigration and Nationality Act. Section
245(i) (1) {B) (i) of the Act provides that an alien who is present
in the United States, but is ineligible for adjustment of status
under Section 245(a) or (c) of the Act is nevertheless permitted
to apply for adjustment of status if he is the child of a
beneficiary of an imigrant visa petition filed under Section
A089-933-665 3 November 5, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
204 of the Act prior to April 30, 2001, provided that the alien
is eligible for a visa under Section 203(d) of the Act. TLc
beneficiary of an immigrant visa petition filed under Section
204 of the Act prior to April 30, 2001, and the respondent :;.::
would have ben her child at that time.
is no
.-:.;:.:::: .. : .. \ .. '.!.::.'":.--
evidence that the respondent's mother was the
beneficiary of the imigrant visa petition, because there is no
evidence that it was actually approved. Bu there is evidence
that one was filed on her behalf. However, this Court finds
that the respondent would not have been accompanying or
following to join a parent who was the beneficiary of a visa
petition under Sub-Section (a), (b) or (c) of Section 203 of the
Act as required under Section 203(d). The respondent's mother
was, instead, the immediate relative beneficiary as defined
under Section 20l(b) (2) (A) (i) of the Act of a visa petition
filed by her United States citizen spouse. Therefore, the
respondent would not be eligible for a visa under Section 203(d)
of the Act, and consequently would not be eligible to adjust his
status under Section 245(i) (1) (B) (i) of the Act.
There is no other application pending before the Court.
The respondent has advised the Court that he is not seeking
voluntary departure in the alternative. Accordingly, in light
of the foregoing, the following order is hereby entered:
A089-933-665 4 November 5, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
ORDER
IT IS HEREBY ORDERED that the respondent's application for
adjustment of status under Section 245(i) of the Act is hereby
pretermitted, as the respondent is not statutorilTeligibJ.e
ilitj for said relief.
IT IS HEREBY FURTHER ORDERED that the respondent shall be
removed from the United States to Honduras based on the charge
contained in the Notice to Appear.
A089-933-665
Please see the next page or electronic sigature
MARIA LOPEZ-ENRIQUEZ
Immigration Judge
5 November 5, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
//s//
Imigration Judge MARIA LOPEZ-ENRIQUEZ
lopezenm on February 14, 2013 at 1:37 PM GMT
A089-933-665 6 November 5, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
MARIA LOPEZ-ENRIQUEZ, in the matter of:
BYRON RODRIGUEZ ROS
A089-933-665
MIAI, FLORIDA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Immigration Review.
KREN COEN BROOKS (Transcriber)
FREE STATE REPORTING, Inc.
JANUARY 31, 2013
(Completion Date)
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t