The BIA Has the Chance to Prevent the Wrongful Deportation of Immigrant Children

Written by on December 17, 2009 in Enforcement, Legislation, Reform with 10 Comments

While there is no question that Congress needs to step up to the plate and repair our broken immigration system through legislative reform, there are some fixes that can be made now without waiting for Congressional action. If the Department of Homeland Security (DHS) and the Board of Immigration Appeals (BIA) would stop narrowly interpreting existing immigration law, many noncitizens would be eligible to complete applications for legal status in the manner Congress intended.

One such narrow interpretation involves the children of noncitizens who are engaged to U.S. citizens. An important goal of our immigration system is to allow families to remain intact. In accord with this, the law allows a fiancé(e) of a U.S. citizen to enter the U.S. on a 90-day “K-1” visa in order to marry the U.S. citizen. A child of the fiancé(e) who is under 21 is eligible for a “K-2” visa, granted specifically to allow the child to remain with his or her parent. Following the marriage to the U.S. citizen, the immigrant fiancé(e) and child are immediately eligible to apply for lawful permanent resident status.

This framework for adjustment of status makes sense and furthers Congress’s goal to keep families intact. The problem arises when DHS fails to complete the application for lawful permanent residence before the child turns 21. Unfortunately, this often is the case, since it can take DHS months and sometimes years to process these applications. Although the child was under 21 years old at the time of admission and may have filed an application for adjustment long before his or her 21st birthday, DHS argues that the child, upon turning 21, is no longer eligible for permanent legal status. The law doesn’t require this result; in fact, a better interpretation, and more consistent with what Congress intended, is that a child can adjust to legal permanent resident status so long as he or she entered the U.S. on the K-2 visa while under 21. Sadly, because of DHS’s narrow interpretation, many children over the age of 21 have been denied legal status and either deported or threatened with deportation. They are being treated as if their K-2 visas allowed for a visit to the U.S. instead of the path to permanent status that Congress intended.

And this is where the role of the BIA has become critical. The BIA now has the opportunity to fix this unreasonably restrictive DHS interpretation in a precedent decision. Currently, the BIA has before it cases of at least five children of fiancé(e)s who have been put in deportation proceedings because they turned 21 before their adjustment of status applications were decided by DHS. To resolve these cases, the BIA must properly interpret the law on K-2 visas and find that the children remained eligible for adjustment even though they were over 21. If the BIA issues a precedent decision in any of these cases, this decision will be binding on all future cases before DHS.

Let’s hope the BIA comes to the right conclusion and enforces Congress’s intent to reunite families, not separate them solely because of the timing of their adjustment applications. If the BIA doesn’t fix this problem, it will be one more issue to add to the list for Congress to fix.

Photo by eriyeriyara.

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  • Thank you for pointing that out! And there are many other areas that they can and should fix this now. We already have plenty of laws in place against assault, causing the death of a human being through neglect, etc. We could enforce those laws and stop torturing the people we do hold in detention, along with their families and friends . . . If anyone thinks it’s not torture to watch a friend go through this, to be assaulted emotionally and financially by your own country – get a hold of me. I’ll be happy to set you straight on that one.

  • Unfortunately, the understaffed BIA tends to rubber stamp the DHS. The BIA can, so it often does, rule against an immigrant in absence of opposition. Knowing this, government lawyers often don’t bother opposing motions before the BIA. Oddly, there is no shortage of government lawyers opposing motions and petitions at the Federal appeals courts, where they face real challenges.

    The BIA usually doesn’t give full faith and credit to lower court rulings and it often fails to weigh both favorable and unfavorable factors, even in unopposed motions.

    In short, the BIA rarely does the right thing until it is forced to by the Federal courts so counting on the BIA to fix this problem doesn’t fill me with confidence.

    The elephant in the room is the BIA and the first order of business ought to be to fix the BIA.

  • So, you’re expecting the BIA to do the right thing. Somehow, that seems like a failed strategy. The fox that guards the hen house is not our friend.

  • “Let’s hope the BIA comes to the right conclusion…” If past behavior is any indication, that won’t happen. The BIA has a history of rubber stamping the DHS and abusing its discretion. It frequently fails to give full faith and credit to lower court decisions and it often fails to weigh both favorable and unfavorable factors.

    The BIA is the fox that guards the hen house. It rarely comes to the right conclusion unless it is forced to by the Federal circuit courts.

  • Ronald Gibson

    You are right Deborah. I know firsthand about the torture you allude to. I am the citizen petitioner of one of the families referred to in Mary’s article. To have fraud committed upon me by my own country is beyond maddening, it is a form of domestic terrorism- perpetrated by the Department of Homeland Security! The very agency created to protect us from terrorism.
    As we await the BIA to do what is right, we are preparing to take this issue even higher. This is one U.S. citizen who is not going to allow his family to be obliterated by a corrupt government department that believes it is above the law as intended by our elected legislators.

  • Joyce Antila Phipps

    I agree that the BIA is the fox that guards the henhouse. Look at the regulations it promulgates to reduce its ability to exercise any critical judgment. Calling it an appeals tribunal is a joke.

  • David Nelson

    In two cases in Chicago this December, both IJ’s just delayed the cases into 2011, apparently waiting on the BIA ruling(s). Is there any reasonable expectation of when this ruling may be issued?

  • Yes, the BIA and the Department of Justice used to follow the USCIS’s interpretation of the relevant statute when it came to K-2 visa holders. However, the recent decision by the Tenth Circuit Court of Appeals (Wladimir Colmenares Carpio v. Eric J. Holder) might change everything. The only way to force the government to stop deportation of stepchildren is through courts. While it is true that the BIA has been reluctant to follow decisions of lower immigration courts, it is more likely to follow the decision of the 10th Circuit Court of Appeals. Because the only court above it is the US Supreme Court. I doubt that USCIS will appeal. This could be the end of injustice.

  • Thanks for the articles. I have learned a lot reading your site.

  • Chris P

    In regards to this issue, a few of the posters here along with me, are caught in this predicament.
    The real sad part is the fact that the BIA has 7 cases pending before them without a decision for well over 15 months since they were filed, this doesn’t count a number of cases pending before the EOIR Immigration Courts. Even during or Master Calendar Hearing last week, the ICE attorney stated that I could have file an I-130 and obtain protection under CSPA, unfortunately this protection doesn’t apply to over 18 and under 21 K-2 applicants, unless one want to apply the CARPIO reasoning of the 10th Cir. Decision, “at the time of application –filing”.
    With the ICE attorney making a comment like this, coming from right field after objecting to our motion filed with the IJ, that was it decided in US District Court that there was no dispute of the existing facts of our case (DHS and the US District Court were in agreement), now ICE wants to claim that there are factual disputes of our case? Our case was dismissed due to Jurisdictional issues, not the merits of the case.
    There was a recent EOIR decision “SESAY”, dtd Mar 17, 2011, rending by a three judge panel in regards to a K-1 case, this panel referenced two known cases from the 9th & 10th Cir. (Choin and Carpio) and Federal interpretation of Statues.