New Case Brings Immigrant Families One Step Closer to Unity
The Board of Immigration Appeals (BIA) recently handed down a decision that brings immigration laws one step closer to keeping families together. Matter of Le is a case involving a mother from Vietnam who came to the United States as a fiancé. Her son, then 19 years old, was also petitioned as a derivative under a K2 visa. The mother married almost immediately upon her entry to the United States, as required under a K1 visa, and she and her son applied to adjust their status. Her application was approved, but his denied because he could not be considered a “step-child” of the fiancé petitioner (her mother’s new husband) because the child was over 18 years old when his mother married. The son was ultimately placed in removal proceedings where the Immigration Judge found him ineligible to adjust status but followed a different reasoning than that stated by the United States Citizenship & Immigration Services (USCIS). The Judge determined that the son could have adjusted his status because he was under 21 years old at the time of his application, but could no longer adjust because he had since turned 21 and could not be considered a “child” under current immigration laws. The question before the Board was whether a child, who enters as a derivative of a fiancé parent, could remain eligible to adjust his/her status if he attains the age of 18 or 21.
The Board disagreed with USCIS and the Immigration Judge who both determined that the son’s age at the time of the adjustment application controlled whether the son would have been eligible to adjust his status. Rather, the Board decided that the son’s age at the time of his entry into the United States controlled. The Board determined that a “minor child,” a term that has been undefined, is the same as a “child” according to section 101(b)(1) of the Immigration and Naturalization Act (INA) which defines a “child” to be an unmarried person under 21 years old. The Board also determined that a fiancé derivate child does not have to qualify as a “step-child” of the fiancé petitioner in order for the child to adjust his/her status, but must only demonstrate that he is a “child” of his fiancé parent whom s/he is accompanying or intending to join.