U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office ofthe Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - HON

595 Ala Moana Boulevard
Honolulu, HI 96813-4999

Name: HUYNH, DUNG

A 096-055-977
Date of this notice: 10/16/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

D CWV\.)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Geller, Joan B
Malphrus, Garry D.
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Dung Huynh, A096 055 977 (BIA Oct. 16, 2015)

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Stanton, James
Stanton Law Group
900 Fort Street, Suite 1110
Honolulu, HI 96813

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 I

File: A096 055 977 - Honolulu, HI

Date:

OCT 16 2015

In re: DUNG HUYNH

APPEAL
ON BEHALF OF RESPONDENT: James A. Stanton, Esquire
ON BEHALF OF OHS:

Chandu Latey
Assistant Chief Counsel

CHARGE:
Notice: Sec.

APPLICATION:

237(a){l)(A), I&N Act [8 U.S.C. 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under
section 212(a)(7)(B)(i)(II), I&N Act [8 U.S.C. 1182(a)(7)(B)(i)(II)] No valid nonimmigrant visa or border crossing card
Adjustment of Status

This case was last before us on April 16, 2013, when we dismissed the respondent's appeal
from an Immigration Judge's decision denying her application for adjustment of status. On
January 9, 2015, the United States Court of Appeals for the Ninth Circuit remanded this matter
on the motion of the Department of Homeland Security ("OHS"), which sought remand for the
Board to address the application to these proceedings of our decision in Matter of Quilantan,
25 l&N Dec. 285 (BIA 2010). For the reasons that follow, the record will be remanded for
further proceedings consistent with this order.
We review an Immigration Judge's factual determinations, including credibility
determinations, for clear error. See 8 C.F.R. 1003.l(d)(3)(i). The Board uses a de novo
standard of review for questions of law, discretion, judgment, and all other issues in appeals from
decisions oflmmigration Judges. See 8 C.F.R. 1003.l(d)(3)(ii).
The procedural history of this matter will be reviewed briefly. The respondent entered the
United States in October 2003 pursuant to a visa filed by her then-fiance, who she married within
90 days. In November 2003, she filed an application for adjustment of status. In May 2006, her
husband sought to withdraw the visa petition. The DHS's Citizenship and Immigration Services
("CIS") denied the adjustment of status application in September 2007, finding that because a
fraudulent affidavit of support was filed with the "K" visa petition, the petition was invalid, and
the respondent could not adjust her status because her October 2003 entry was not a lawful
admission. 1
1

A previous, i.e., June 2006, CIS decision erroneously denied the adjustment of status
application based on the attempted withdrawal of the visa petition by the respondent's
Cite as: Dung Huynh, A096 055 977 (BIA Oct. 16, 2015)

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IN REMOVAL PROCEEDINGS

A096 055 977

In our April 2013, decision, we affirmed the Immigration Judge's decision that the
respondent could not adjust her status through her present marriage. Section 245(d) of the Act
prohibits the respondent, who entered the United States as the recipient of a K visa, from
adjusting her status by any means other than through her marriage to the petitioner of that visa.
Matter of Sesay, 25 I&N Dec. 431,437 (BIA 2011). This aspect of our decision is not at issue
in the Ninth Circuit's remand.
Rather, at issue is the respondent's argument that she remains eligible to adjust her status
through the visa petition filed by the "K" visa petitioner, which permitted her entry into the
United States as a fiancee of a United States citizen. She argues that notwithstanding the end of
that marriage, she remains eligible to adjust on this petition because she married the citizen who
petitioned for her, and because although this marriage ended in 2009, it was bona fide at its
inception. See Respondent's Brief at 10-14. The respondent's adjustment of status application
arising out of this marriage was last denied by CIS in September 2007 after consideration of the
respondent's motion to reopen, however, she renewed the application for adjustment through her
first marriage in removal proceedings before the Immigration Judge. As noted, however, the
Immigration Judge found that the respondent could not adjust status via her first marriage since
she was never lawfully admitted to the United States when she entered on the K visa.
Turning to the issue raised in the Ninth Circuit's recent remand of this record, we
acknowledge that our issuance of Matter of Qilantan, supra, undermines the Immigration
Judge's reasoning for finding the respondent ineligible for adjustment of status under section
245(a) of the Act. In Matter of Quilantan, supra, the Board held that in order to show that he or
she has been "admitted" to the United States pursuant to section 101(a)(13)(A) of the Act,
an applicant for adjustment of status under section 245(a) of the Act need show only procedural
regularity. Therefore, the fact that the respondent's 2003 admission was not "lawful" (due to the
first husband. In response to the motion of the respondent, the CIS acknowledged that under the
circumstances of this case, a K visa could not be withdrawn at the request of the petitioner.
Notwithstanding this, as previously noted, the application was finally denied on September 2007
and the respondent never was accorded conditional permanent resident status. Cf Choin
v. Mukasey, 537 F.3d 1116, 1119 (9th Cir. 2008). The respondent did not file an appeal from
the September 2007 CIS decision.
2
Cite as: Dung Huynh, A096 055 977 (BIA Oct. 16, 2015)

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The respondent was placed into removal proceedings in April 2008 (Exh. 1). She divorced
the "K" visa petitioner and married another United States citizen, to whom she remains married
presently. She has two United States citizen children with her present husband, and he has filed
a visa petition on her behalf, which was approved on November 25, 2009 (l.J at 2). The
respondent filed applications for adjustment of status and waivers of inadmissibility. These
applications were denied by the Immigration Judge in December 2010, on the basis that the
respondent was ineligible to adjust her status through her marriage to her present husband, since
the Immigration and Nationality Act prohibits the recipient of a K visa from adjusting status on a
basis other than marriage to the K visa petitioner (Id.). Furthermore, the Immigration Judge
found (in accord with the CIS decision of September 2007), that the respondent was not legally
"admitted" to the United States when she entered in 2003, and that, therefore, she could not
adjust her status through her marriage to the K visa petitioner (Id.).

A096 055 977

fraudulent affidavit of support filed with the K visa) does not pose a bar to showing that she has
been "admitted" for purposes of applying for adjustment of status under section 245(a) of the
Act.

Moreover, to obtain relief, the respondent must also demonstrate that "an immigrant visa
[was] immediately available . . . at the time [her adjustment of status] application is filed." See
section 245(a) of the Act. In Matter of Sesay, 25 I&N Dec. 431, 439-440 (BIA 2011), we held
that for a fiance visa holder, the requirements of section 245(a) of the Act (i.e., as to visa
eligibility and availability) are satisfied at the time the fiance is admitted to the United States.
Therefore, to determine the respondent's eligibility to adjust her status via her first marriage, the
Immigration Judge should determine whether a visa was available to her at the time she was
admitted, notwithstanding the fact that this admission was not legally sound. In this regard, we
note that the record does not reflect that the original K visa was revoked, just that the
respondent's application to adjust her status based on the marriage to the K petitioner was denied.
In the event that the Immigration Judge determines that a visa remains available for the
respondent, further proceedings should follow to determine whether the respondent's marriage to
the K petitioner was bona fide, see Matter ofSesay, supra, at 440, and whether she is eligible for
and deserving of a discretionary waiver of inadmissibility and adjustment of status.
For the foregoing reasons, the following order will be entered.
ORDER: The record is remanded for further proceedings consistent with this order.

FOR THE BOARD

3
Cite as: Dung Huynh, A096 055 977 (BIA Oct. 16, 2015)

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But while Matter of Quilantan makes it clear that the respondent meets the requirement in
section 245(a) that she was "inspected and admitted," the respondent must also demonstrate that
she is "admissible to the United States for permanent residence." Although admitted in 2004
with procedural regularity, her admission was obtained in a manner that appears to leave her
substantively inadmissible for purposes of adjustment of status. As such, she would require a
waiver addressing her inadmissibility under section 212(a)(6)(C)(i) of the Act.