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Shales v. Shales

December 29, 2006

MIKE SHALES, JOHN BRYAN SR., AL OROSZ, JOSEPH MANN, TOBY KOTH AND GORDON ANDERSON AS TRUSTEES OF THE FOX VALLEY LABORERS' HEALTH AND WELFARE FUND,
v.
MIKE SHALES, JOHN BRYAN SR., AL OROSZ, TOBY KOTH, GORDON ANDERSON AND DAN BREJC AS TRUSTEES OF THE FOX VALLEY LABORERS' PENSION FUND, PLAINTIFFS,
v.
MASONRY STRUCTURES, INC., MICHAEL DALLESASSE, INDIVIDUALLY AND DOING BUSINESS AS MASONRY STRUCTURES, INC., AND MAGISTRATE JUDGE DENLOW ROBIN DALLESASSE, INDIVIDUALLY AND DOING BUSINESS AS MASONRY STRUCTURES, INC., DEFENDANTS.
MASONRY STRUCTURES, MICHAEL DALLESASSE AND ROBIN DALLESASSE PLAINTIFFS,
v.
MIKE SHALES, JOHN BRYAN, SR., AL OROSZ, JOSEPH MANN, TOBY KOTH AND GORDON ANDERSON AS TRUSTEES OF THE FOX VALLEY LABORERS' HEALTH AND WELFARE FUND ("WELFARE FUND") AND MIKE SHALES, JOHN BRYAN SR., AL OROSZ, TOBY KOTH, GORDON ANDERSON AND DAN BREJC AS TRUSTEES OF THE FOX VALLEY LABORERS' PENSION FUND



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Maria Baruelo seeks to overturn a decision by the District Director of United States Citizenship and Immigration Services denying her application for adjustment of her immigration status to that of lawful permanent resident. For the reasons stated below, the Court reverses the decision of the District Director and remands the case to the agency for further proceedings.

Facts

Maria Baruelo ("Baruelo") is a native and citizen of the Philippines who was born on February 12, 1981. Administrative Record ("AR") 23. On August 4, 1997, Baruelo's mother Biani Baruelo ("Biani"), a lawful permanent resident of the United States, filed a petition with the Immigration and Naturalization Service ("INS") seeking to obtain an immigrant visa for Baruelo pursuant to section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2), on the ground that Baruelo was the child of a lawful permanent resident. AR 92.

Section 203 provides various "preference" categories for allocation of immigrant visas, with each category subject to numerical limits. The first preference is for unmarried sons or daughters of citizens. 8 U.S.C. § 1153(a)(1). The second preference category -- the one under which Biani made the application for Baruelo -- is for persons who are spouses or minor children of permanent resident aliens (category 2A) or unmarried sons or daughters, age twenty-one or over, of permanent resident aliens (category 2B). Id. § 1153(a)(2); see also, 8 U.S.C. § 1101(b)(1) (definition of "child").

The INS approved Biani's petition on November 21, 1997. AR 90. As of that date, Baruelo was sixteen years, nine months, and nine days old. The approval of the immigrant visa petition, however, did not mean that Baruelo was given a visa at that point. Evidently a separate application must be made for such a visa when one becomes available. See Def. Mem. at 5. Due to backlogs resulting from statutory limitations on the number of immigrant visas, an immigrant visa did not become available to Baruelo until nearly five years later, on November 1, 2002. See Def. Ex. 7, ¶ 7.*fn1 But by that time, Baruelo had already turned twenty-one; specifically, she was twenty-one years, eight months, and nineteen days old. As a result, Baruelo had "aged-out," meaning that she ordinarily would no longer be eligible for an immigrant visa pursuant to her mother's application.

In the meantime, in September 2001, Baruelo entered the United States on a non-immigrant visa. See AR 15. She evidently obtained this visa as a result of the Legal Immigration Family Equity Act ("LIFE Act"), adopted by Congress in December 2000. See Pub. L. 106-553, 114 Stat. 2762. This statute was adopted to protect legal immigrants' spouses and children who were unable to immigrate legally due to quota backlogs and processing delays. It created a non-immigrant visa category to permit temporary admission of aliens who were direct or derivative beneficiaries of pending visa petitions delayed due to backlogs, to permit them to remain in this country until they were able to immigrate. See 8 U.S.C. § 1101(a)(15)(V). Another provision of the LIFE Act directed the Attorney General to authorize an alien given a non-immigrant visa of this type to work in the United States during the period of authorized admission. 8 U.S.C. § 1184(q)(1)(A). The same provision stated that the period of authorized admission terminated thirty days after the denial of a petition to accord the alien second preference immigrant visa status as the child of a legal permanent resident under § 1153(a)(2)(A), the denial of the alien's application for an immigrant visa, or the denial of the alien's application for adjustment of her immigration status. Id. § 1184(q)(1)(B).

On September 24, 2003, Baruelo filed an I-485 application with United States Citizenship and Immigration Services ("CIS"), a successor agency to INS, seeking to adjust her immigration status to that of lawful permanent resident. On the application, Baruelo checked off a box stating that the basis for her application was that "am immigrant petition giving me an immediately available immigrant visa number has been approved." AR 15.

On June 1, 2005, CIS denied Baruelo's application for adjustment of status. AR 12. The District Director's decision letter quoted 8 C.F.R. § 204.2(a)(4). That regulation, as quoted in the decision letter, provides that if a child turns twenty-one before a visa is issued to the alien parent, a separate visa petition is required; that "the original priority date will be retained if the subsequent petition is filed by the same petitioner"; and that "[s]uch retention of priority date will be accorded only to a son or daughter previously eligible as a derivative beneficiary under a second preference spousal petition." Id. After quoting the regulation, the decision stated that "[a]s you are now over the age of twenty-one, you do not qualify as a derivative beneficiary. In addition, no visa petition has been filed directly in your behalf. Accordingly, your application for adjustment of status is denied." Id.

In November 2005, Baruelo filed suit under the Administrative Procedure Act, 5 U.S.C. § 702, and the Declaratory Judgment Act, 28 U.S.C. § 2201, and 28 U.S.C. § 1361, seeking a determination that CIS's decision was contrary to law and that Baruelo was eligible for adjustment of her immigration status, and an order directing defendant Michael Comfort, District Director of CIS, to approve her application for adjustment of status.

On February 15, 2006, CIS issued an amended decision. AR 11. The amended decision, like the original decision, quoted 8 C.F.R. § 204.2(a)(4). After quoting the regulation, the amended decision stated that "prior to the visa becoming available, you were 21 years of age and you no longer meet [sic] the definition of a child as described in Section 101 of the Act. You do not qualify for the Child Status Protection Act of 2002 as you 'aged out' before August 06, 2002. You are no longer eligible for the classification sought therefore [sic], your application for adjustment of status must be and is hereby denied." Id.

In April 2006, removal proceedings were initiated against Baruelo on the ground that her non-immigrant visa had expired. AR 7-8. Baruelo moved to dismiss those proceedings, arguing that in considering her non-immigrant visa to be expired, the government was relying on a regulation that was contrary to the intent of Congress when it adopted the LIFE Act. See Pl. Ex. 13. The removal proceedings were terminated without prejudice on August 29, 2006. See Pl. Ex. A (attached to Pl's Resp. to Def's Cross-Mot. for Summ. Judg.).

The Child Status Protection Act

As indicated above, a lawful permanent resident like Biani Baruelo may file a petition to accord lawful permanent resident status to certain categories of her relatives. Family-sponsored immigrants who are the relatives of lawful permanent residents are subject to numerical restrictions based on the nature of their relationship with the lawful permanent resident, as well as per-country numerical limitations. The relative is supposed to remain outside the United States while waiting for a visa, unless she qualifies for and obtains a non-immigrant visa -- as Baruelo did. See Def. Mem. at 4.

A lawful permanent resident requests approval of a visa for a qualifying relative by filing a Form I-130 with CIS (in 1997, with the INS). See Def. Mem. at 5. Biani did this on behalf of Baruelo, her daughter. As stated earlier, the form was ...


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