U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BOS

P .0. Box 8728
Boston, MA 02114

Name: MALAVIYA, KIRIT

A 074-998-626
Date of this notice: 4/15/2016

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

Don,u_ Ct1/vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Kirit Malaviya, A074 998 626 (BIA April 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Drew, Randall A
Drew Law Office, PLLC
82 Palomino Lane, Suite 602
Bedford, NH 03110

,.

,.

'

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A074 998 626 - Boston, MA

Date:

'APR 1 5 2016

In re: KIRIT MALAVIYA a.k.a. Kirit Malvya

APPEAL
ON BEHALF OF RESPONDENT: Randall A. Drew, Esquire
CHARGE:
Notice: Sec.

237(a)(l)(D)(i), I&N Act (8 U.S.C. 1227(a)(l)(D)(i)] Conditional resident status terminated ( conceded)

Lodged: Sec.

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)(6)(C)(i), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)]
Fraud or willful misrepresentation of material fact (found)

APPLICATION: Adjustment of status

This matter was last before the Board on June 27, 2013, when we granted the parties' joint
motion to remand the record to the Immigration Judge for purposes of allowing the respondent to
pursue adjustment of status under section 245(a) of the Immigration and Nationality Act (Act),
8 U.S.C. 1255(a). Thereafter, on May 19, 2014, the Immigration Judge pretermitted the
respondent's adjustment application, and this timely appeal followed. The appeal will be
sustained, and the record will be remanded for further proceedings consistent with this opinion.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3){i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment,. and all
other issues de novo. See 8 C.F.R. 1003.l{d)(3)(ii).
The following facts and procedural history are not in dispute. The respondent, a native and
citizen of India, obtained conditional permanent residence on September 23, 1996, based on his
marriage to a United States citizen (I.J.1 at 2; Tr.I at 2; Exhs. 1-2, 7, 63). 1 The respondent and
1

Immigration Judge decisions were issued on March 1, 2006, and May 19, 2014, that will be
referred to hereinafter as I.J.l and I.J.2, respectively. In addition, two non-continuously
paginated transcripts were generated in the course of these proceedings. The transcript
associated with the Immigration Judge's March 1, 2006, decision will be referred to as Tr.I, and
the transcript associated with the Immigration Judge's May 19, 2014, decision will be referred to
as Tr.2.

Cite as: Kirit Malaviya, A074 998 626 (BIA April 15, 2016)
,.&

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A074 998 626

Before the Immigration Judge, the respondent sought review of the joint petition denied by
the INS (I.J.l at 4; Tr.I at 4; Exh. 7). In a decision dated March 1, 2006, the Immigration Judge
made an adverse credibility finding with respect to the testimony offered by the respondent and
several of his witnesses (I.J.1 at 13-17). Based on her credibility determinations and other record
evidence, the Immigration Judge concluded that the respondent's marriage was shown not to
have been bona fide at inception, and to have been entered into for the purpose of evading the
immigration laws (I.J.l at 17-19; Exhs. 26, 35, 58, 61-62, 66). Accordingly, the Immigration
Judge sustained the charge lodged by the Department of Homeland Security (DHS) under section
237(a)(l)(A) of the Act, 8 U.S.C. 1227(a)(l)(A), alleging that the respondent was inadmissible
at the time of his adjustment of status by virtue of fraud in his marriage (I.J.1 at 19). In addition,
she denied the respondent's petition for removal of the conditions on his residence (1.J.1 at 1718).
The respondent timely appealed the Immigration Judge's decision, wherein he primarily
challenged the denial of the joint petition. We dismissed the appeal on April 10, 2008. Then, on
May 16, 2013, the respondent and the DHS filed a joint motion to reopen these removal
proceedings. In the joint motion, the parties acknowledged that a Petition for Alien Relative
(Form I-130) had been filed on the respondent's behalf by his United States citizen daughter and
that the petition was approved on March 27, 2013. The respondent expressed a desire to pursue
adjustment of status under section 245(a) of the Act through the approved visa petition. We
granted reopening on June 27, 2013, and remanded the record to the Immigration Judge for
further proceedings related to the respondent's adjustment application.
In the course of remanded proceedings, the Immigration Judge pretermitted the respondent's
adjustment application because she concluded that, notwithstanding the approved visa petition,
the respondent is barred from adjusting his status based on the language of section 204(c) of the
Act, 8 U.S.C. 1154(c) (1.J.2 at 2-3). On appeal, the respondent maintains that the Immigration
Judge erred in relying on this provision in pretermitting his adjustment application
(Notice of Appeal).
We agree with the respondent that the Immigration Judge erred in relying on section 204(c)
of the Act for purposes of pretermitting the respondent's adjustment application (I.J.2 at 2-3).
The language of section 204(c) of the Act expressly states that no visa petition shall be approved
if the beneficiary has been accorded status by reason of a marriage entered into for the purpose
of evading the immigration laws. Here, USCIS has already approved the visa petition filed on
the respondent's behalf by his daughter notwithstanding the prior INS and Immigration Court
discussions of marriage fraud, and only the respondent's application for adjustment of status is
before the Immigration Court. Moreover, the Board has consistently held that USCIS has
2
Cite as: Kirit Malaviya, A074 998 626 (BIA April 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

his then-spouse filed a Joint Petition to Remove the Conditions on Residence (Form 1-751) with
the former Immigration and Naturalization Service (INS) (now United States Citizenship and
Immigration Services (USCIS)) on July 10, 1998, and the INS denied the joint petition and
terminated the respondent's conditional permanent resident status on September 29, 1999
(1.J.1 at 2-3; Exh. 8). As a result, these removal proceedings were instituted by issuance of a
Notice to Appear dated September 29, 1999, and before the Immigration Judge the respondent
conceded his deportability as one whose conditional permanent resident status has been
terminated (I.J.l at 2-3; Tr.I at 2; Exhs. 1-2).

A074 998 626

To be eligible for adjustment of status under section 245(a) of the Act, a respondent must
show that he: (1) has filed an application for adjustment of status; (2) is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence; and (3) has an
immigrant visa immediately available to him. See section 245(a) of the Act; 8 C.F.R.
1245.l(a). He must also demonstrate that he merits relief in the exercise of discretion. There
is no dispute, here, that the respondent has applied for adjustment of status (I.J .2 at 2-3;
Resp. September 17, 2013, Documentary Submission). Further, he is the beneficiary of an
approved visa petition as the parent of a United States citizen with a visa number immediately
available to him. See section 201(b)(2)(A)(i) of the Act, 8 U.S.C. 115l(b)(2)(A)(i).
Although we conclude that the first and third requirements for adjustment of status outlined
above have been satisfied, we note that questions remain regarding the respondent's
admissibility. In particular, we acknowledge that the respondent's prior adjustment of status
through his marriage to a United States citizen is relevant in evaluating whether he is
inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 1182(a)(6)(C)(i) (I.J.l at
12-19). Moreover, we are unpersuaded by the respondent's assertion that this ground of
inadmissibility is inapplicable here because the DHS has not filed a charge on this basis (Notice
of Appeal). First, we note that the DHS charged the respondent with deportability for having
been inadmissible at the time of his prior adjustment related to the allegations of fraud in the
respondent's marriage, a charge previously sustained by the Immigration Judge and not
meaningfully challenged by the respondent in his prior appeal to this Board (I.J.l at 19; Exh. 6).
Moreover, once the Immigration Judge sustains any charge such that she has jurisdiction over
removal proceedings instituted before the Immigration Court, the respondent then bears the
burden of establishing his eligibility for relief from removal. See section 240(c)(4)(A)(i) of the
Act, 8 U.S.C. 1229a(c)(4)(A)(i); 8 C.F.R. 1240.S(d). In this case because the respondent is
seeking adjustment of status, he thus bears the burden of establishing his admissibility regardless
of any charges brought by the DHS. See section 245(a) of the Act. However, the Immigration
Judge did not address the respondent's admissibility in her decision. Instead, she impermissibly
relied solely upon section 204(c) of the Act in pretermitting the respondent's adjustment
application.
In light of the foregoing, we conclude that remand of the record is required for the
Immigration Judge to further consider the respondent's eligibility for adjustment of status,
including (1) whether he is admissible, (2) if he is inadmissible whether a waiver of
inadmissibility is available, and (3) whether he warrants relief in the exercise of discretion. See
section 245(a) of the Act. On remand, the parties should have an opportunity to present
3
Cite as: Kirit Malaviya, A074 998 626 (BIA April 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

exclusive authority to determine whether the bar at section 204(c) of the Act applies in
adjudicating visa petitions. See, e.g., Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990)
(explaining that under section 204(c) of the Act "the district director must deny any subsequent
visa petition for immigrant classification filed on behalf of such alien ..." (emphasis added));
Matter of Rahmati, 16 I&N Dec. 538, 539 (BIA 1978) (clarifying that "[t]he section 204(c)
decision is to be made on behalf of the Attorney General by the District Director in the course of
his adjudication of the subsequent visa petition." (citing Matter of Samsen, 15 I&N Dec. 28
(BIA 1974)) (emphasis added)). Accordingly, an Immigration Judge has no authority to apply
section 204(c) of the Act in adjudicating an application for adjustment of status.

A074 998 626

additional documentary and testimonial evidence in assisting the Immigration Judge with issuing
a new decision.
Accordingly, the following orders will be entered.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the entry of a new decision.

FOR THE BOARD

4
Cite as: Kirit Malaviya, A074 998 626 (BIA April 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

ORDER: The respondent's appeal is sustained.

May 19, 2014

File: A074-998-626
In the Matter of
)
)
)
)

KIRIT MA LAVIYA
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a)(1)(8),237(a)(A ), 237(a)(D)(i), 212(a)(6)(C)(i).

APPLICATION:

Adjustment of status.

ON BEHA LF OF RESPONDENT: Randal Drew, Esquire

ON BEHA LF OF OHS: Melissa Gavegnano
Assistant Chief Counsel

ORA L DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondents (hereafter referred to as the male respondent and female
respondent) are natives and citizens of India, and were issued Notices to Appear on
separate dates in 1999. The procedural history of these two cases is lengthy and
incorporated into prior decisions of the Immigration Court (Sheppard, IJ) and the Board
of Immigration Appeals (BIA or Board). The two cases proceeded on separate tracks,
but ultimately both cases were remanded by the Board of Immigration Appeals for the
court to consider applications for adjustment of status based on an approved visa

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON,MASSACHUSETTS

petition for each of the respondents filed by their adult daughter.

The government has moved to pretermit the applications based on INA

consolidated for purposes of this decision.

STATEMENT OF THE LAW
Section 204C of the Immigration and Nationality Act provides that no
petition shall be approved if:
Notwithstanding the provisions of subsection B. No petition shall be
approved if (1) the alien has previously be accorded, or has sought to be accorded, an
immediate relative or preference status as the spouse of a citizen of the United States,
or the spouse of an alien lawfully admitted for permanent residence, by reason of a
marriage determined by the Attorney General to have been entered into for the purpose
of evading the immigration laws, or (2) the Attorney General has determined that the
alien has attempted or conspired to enter into a marriage for the purpose of evading the
immigration laws. Qaok to tmd,
I NA Section 240c.
FINDINGS AND ANALYSIS
In the case of the male respondent (074-998-626), the Immigration Court
(Sheppard, IJ) on March 31, 2006, denied a joint petition and found the respondent to
have entered into a marriage for the purpose of evading the immigration laws under INA
Section 204c. See written orders of the Immigration Judge, March 31, 2006 1 .
The court's decision was upheld by the Board on April 10, 2008. The
Board specifically found no reversible error in the IJ's decision to deny the joint petition
based on the conclusion that the facts and information set forth in the 1-751 were not
true. BIA, April 10, 2008 Decision, page 3. The male respondent is thus barred from
further adjusting his status under INA Section 204c.
1

The orders contain two different dates. The first is March 1, 2006. The second is March 31, 2006.

A074-998-626

May 19, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Section 204c. -A...nd the court grants the motion to pretermit. The cases are also

As to the female respondent, although the Immigration Court itself did not
make the finding that the female respondent was subject to the 204C bar, it did note, in

Nationalization Service (INS.J alternatively referred to as the Service}, made a finding

that the female respondent was found to be barred from adjusting status by virtue of the
INS decision. January 24, 2003, transcript page 3. Although Judge Sheppard was
under the impression that the denial of the visa petition based on fraud was appealed,
to either the Board *-.QLthe Administrative Appeals Office, there is no evidence that any
such appeal was taken. Thus, the decision of the INS denying the visa petition on
October 15, 2002, is a final agency decision and the respondent is ineligible to adjust
her status. The court specifically notes that INA Section 204c requires that there be a
finding by the Attorney General. The INS at that time was part of the Departure
Department of Justice, and therefore this final agency decision that the female
respondent is subject to the 204c bar was in fact made by the Attorney General. As the
court is unable to review grants or denials of visa petitions, the court is bound by this
decision as well for the present adjustment of status case. See October 15, 2002,
Notice of denial of visa petition filed with the court by DHS on May 19, 2014.
Remanded Exhibit 1.
As the court finds that each of the respondent..!s is subject to the 204c
bar, the court grants the government's motion to pretermit their applications for
adjustment of status as they are ineligible.
No other applications are pending before the court.

A074-998-626

May 19, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

the court's January 24, 2003, decision that what was then the Immigration and

ORDERS

The respondentL!& applications for adjustment of status are pretermitted

and denied. The respondents are ordered removed to India.
If any party wishes to appeal this decision, the appeal will be due at the
Board of Immigration Appeals on or before June 18, 2014.

Please see the next page for electronic

signature

A074-998-626

ROBIN E. FEDER
Immigration Judge

May 19, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

The following orders shall enter:

r\
.

/Is//
Immigration Judge ROBIN E. FEDER

Immigrant & Refugee Appellate Center, LLC | www.irac.net

federr on January 8, 2015 at 6:07 PM GMT

A074-998-626

May 19, 2014