11-2517-ag
Caraballo-Tavera v. Holder


                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                 August Term, 2011

(Submitted On: June 15, 2012                                                              Decided: June 18, 2012)
                                 Docket No. 11-2517-ag
________________________________
DIOMARES DE JESUS CARABALLO-TAVERA,

                         Petitioner,

                         v.

ERIC H. HOLDER, JR., United States Attorney General,

            Respondent.
________________________________

Before: CALABRESI, CABRANES, and LOHIER, Circuit Judges.

            Appeal from a June 6, 2011 decision of the Board of Immigration Appeals, affirming the June 18,

2009 decision of an Immigration Judge that denied petitioner’s application for adjustment of status and

ordered him removed. Because the petitioner is ineligible to adjust his status to that of a lawful

permanent resident on any basis other than marriage to his K-1 visa sponsor, we affirm.

                                             Howard L. Baker, Wilens & Baker, P.C., New York, NY, for
                                                   Petitioner Diomares De Jesus Caraballo-Tavera.

                                             Julia J. Tyler, Trial Attorney; Tony West, Assistant Attorney
                                                      General; and Shelley R. Goad, Assistant Director;
                                                      Office of Immigration Litigation, Civil Division,
                                                      United States Department of Justice, Washington, DC,
                                                      for Respondent Eric H. Holder, Jr., United States Attorney
                                                      General.




                                                          1
PER CURIAM:

        Diomares De Jesus Caraballo-Tavera (“Caraballo-Tavera”), a native and citizen of the

Dominican Republic, petitions for review of a June 6, 2011 decision of the Board of Immigration

Appeals (“BIA”), affirming the June 18, 2009 decision of an Immigration Judge (“IJ”) that denied his

application for adjustment of status and ordered him removed. In re Caraballo-Tavera, No. A073 616

278 (B.I.A. June 6, 2011), aff’g No. A073 616 278 (Immig. Ct. Hartford, CT June 18, 2009). We

recount only such facts as are necessary to explain our decision.

        Where, as here, “the BIA does not expressly ‘adopt’ the IJ’s decision, but ‘its brief opinion

closely tracks the IJ’s reasoning,’” we “consider both the IJ’s and the BIA’s opinions ‘for the sake of

completeness.’” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. DHS,

448 F.3d 524, 528 (2d Cir. 2006)). We review the BIA’s legal conclusions de novo, “with the caveat that

the BIA’s interpretations of ambiguous provisions of the [Immigration and Nationality Act] are owed

substantial deference unless ‘arbitrary, capricious, or manifestly contrary to the statute.’” Mardones v.

McElroy, 197 F.3d 619, 624 (2d Cir. 1999) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 844 (1984)).

                                            DISCUSSION

                                   I. Relevant Statutory Provisions

        Under the Immigration and Nationality Act (“INA”), “[t]he term ‘lawfully admitted for

permanent residence’ means the status of having been lawfully accorded the privilege of residing

permanently in the United States as an immigrant in accordance with the immigration laws.” INA

§ 101(a)(20), 8 U.S.C. § 1101(a)(20). Certain aliens physically present in the United States can seek

lawful permanent resident (“LPR”) status without having to depart the United States. Pursuant to

8 U.S.C. § 1255(a), the Attorney General, in his discretion, may accord LPR status to “an alien who

                                                      2
was inspected and admitted . . . into the United States,” provided, inter alia, that he is “eligible to

receive an immigrant visa” and “an immigrant visa is immediately available to him at the time his

[adjustment of status] application is filed.” INA § 245(a), 8 U.S.C. § 1255(a).

         Certain classes of aliens are expressly barred from adjusting their status under 8 U.S.C. § 1255(a).

One such class includes holders of nonimmigrant “K-1 visas”—individuals who are fiancé(e)s of United

States citizens and “who seek[] to enter the United States solely to conclude a valid marriage with the

petitioner within ninety days after admission.” INA § 101(a)(15)(K), 8 U.S.C. § 1101(a)(15)(K). These

individuals may adjust to LPR status only pursuant to 8 U.S.C. § 1255(d), which provides, in relevant part:

         The Attorney General may not adjust, under [8 U.S.C. § 1255(a)], the status of a
         nonimmigrant alien described in [8 U.S.C. § 1101(a)(15)K)] except to that of an alien
         lawfully admitted to the United States on a conditional basis under [8 U.S.C. § 1186] as a
         result of the marriage of the nonimmigrant . . . to the citizen who filed the [K-1 visa
         petition].

         As the language of the statute makes clear, K-1 visa holders can first adjust only to conditional

lawful permanent resident (“CLPR”) status. INA § 245(d), 8 U.S.C. § 1255(d). In order to remove the

conditions on the alien spouse’s permanent residency, the alien spouse and petitioning spouse jointly

must submit a petition requesting the removal of the conditional designation.1 See INA § 216(c)(1)(A), 8

U.S.C. § 1186a(c)(1)(A). If the alien spouse is unable to file a joint petition because, for example, the

marriage has ended, he may apply for a waiver of the joint petition requirement by attesting, inter alia, that

the marriage was entered into in good faith, but the marriage ended other than by death, and that the alien

spouse was not at fault in failing to meet the joint filing requirements. See 8 U.S.C. § 1186a(c)(4)(B); see

also 8 C.F.R. § 216.5(a)(ii). If the joint petition waiver is granted, the conditions on the alien’s permanent



1The petition for removal of conditions “must be filed during the 90-day period before the second anniversary of the alien’s
obtaining the status of lawful admission for permanent residence.” 8 U.S.C. § 1186a(d)(2)(A).



                                                             3
resident status are removed, and the alien becomes an LPR. See 8 U.S.C. § 1186a(c)(3)(B). If, however,

the joint petition waiver is denied, the alien’s CLPR status is terminated and he is placed in removal

proceedings. See 8 U.S.C. § 1186a(c)(3)(C); see also 8 C.F.R. § 216.5(f).

                     II. Caraballo-Tavera’s Eligibility for Adjustment of Status

                                                 A. Facts

        Caraballo-Tavera complied with the statutory framework described above. In July 1998, he

entered the United States on a K-1 visa as the fiancé of Nilsa Debora Perez (“Perez”), a United States

citizen. Caraballo-Tavera and Perez were married within the 90-day period prescribed by law. 8 U.S.C.

§ 1184(d). In December 1999, Caraballo-Tavera adjusted his status to CLPR on the basis of his marriage

to Perez. The couple divorced in March 2001. Caraballo-Tavera thereafter filed a petition to remove

the conditions on his residency, seeking a waiver of the joint petition requirement on the basis that he had

entered the marriage in good faith. In October 2005, the Department of Homeland Security (“DHS”)

denied the waiver request, finding that Caraballo-Tavera had failed to meet his burden to prove the bona

fides of the marriage, and terminated his CLPR status. Removal proceedings commenced on March 2,

2006.

        Caraballo-Tavera argued during the removal proceedings, as he does on appeal, that he is eligible

to adjust to LPR status under 8 U.S.C. § 1255(a) based on an approved immigrant visa petition filed by his

daughter, a United States citizen. The sole question on appeal is whether Caraballo-Tavera is eligible to

adjust his status to LPR on any basis other than marriage to his K-1 visa sponsor (i.e., his ex-wife). The

BIA and IJ held that he is not. We affirm.

                                               B. Analysis

        At the outset, we note that the BIA and several of our sister circuits have interpreted the language

of 8 U.S.C. § 1255(d) to bar an alien admitted to the United States on a K-1 visa from obtaining LPR



                                                     4
status on any basis other than marriage to the K-1 visa sponsor. See, e.g., Birdsong v. Holder, 641 F.3d 957,

961 (8th Cir. 2011); Zhang v. Holder, 375 F. App’x 879, 885 (10th Cir. 2010); Choin v. Mukasey, 537 F.3d

1116, 1120 n.4 (9th Cir. 2008); Markovski v. Gonzales, 486 F.3d 108, 111 (4th Cir. 2007); Matter of Sesay, 25

I&N Dec. 431, 437–38 (BIA 2011).

        Caraballo-Tavera does not contest that § 1255(d) bars a “nonimmigrant alien described in

[8 U.S.C. § 1101(a)(15)(K)]” from adjusting his status on any basis other than marriage to the K-1 visa

sponsor. 8 U.S.C. § 1255(d). Instead, he argues that he is not subject to the restrictions set forth in

§ 1255(d) because he is not a “nonimmigrant alien described in [8 U.S.C. § 1101(a)(15)(K)].” In essence,

Caraballo-Tavera contends that he “ceased to be a nonimmigrant” subject to § 1255(d) when he adjusted

his status to CLPR in December 1999.

        The Ninth Circuit confronted a similar claim in Kalal v. Gonzales, 402 F.3d 948 (9th Cir. 2005), in

which a petitioner who did not marry her K-1 visa sponsor was granted CLPR status in error. The Ninth

Circuit held that “[o]nce [Kalal’s] improperly granted CLPR status was rescinded, Kalal was in the

position of a K-1 visa holder who neither married her fiancé within 90 days of entry, nor departed. In

short, she was removable.” Id. at 951. The court concluded that Kalal was obligated to comply with the

“specific restrictive process for holders of that kind of visa,” and that § 1255(d) precluded Kalal from

adjusting her status to LPR on any basis other than her marriage to the original K-1 visa sponsor. Id. at

951–52.

        Unlike the petitioner in Kalal, Caraballo-Tavera complied with the initial statutory requirements

by marrying his fiancée within 90 days of his arrival in the United States and adjusting to CLPR status on

the basis of his marriage. But in the end, both petitioners lost their CLPR status because they failed to

fully comply with the K-1 visa requirements—Kalal because she failed to marry her K-1 visa sponsor, and

Caraballo-Tavera because he failed to prove the bona fides of his marriage. Because Caraballo-Tavera



                                                     5
failed to complete the process for K-1 visa holders to obtain full LPR status, he, like Kalal, is in the

position of an “out of status” K-1 visa admittee.

         It is clear from the statutory scheme set forth above that Congress has devised “a specific

restrictive process” for K-1 visa holders. Id. at 952. As an “out of status” K-1 visa admittee who has

failed to follow the required statutory process, Caraballo-Tavera remains subject to the restrictions in

§ 1255(d). He is therefore ineligible to adjust his status to LPR on any basis other than marriage to his

K-1 visa sponsor. See, e.g., Choin, 537 F.3d at 1119 n.4 (“There is no question that the plain language of

[§ 1255(d)] bars K visaholders from adjusting to permanent resident status on any basis other than the

marriage to the citizen who petitioned on their behalf.”). Accordingly, we conclude that

Caraballo-Tavera’s application for adjustment of status under 8 U.S.C. § 1255(a) was properly denied,

since he is ineligible as a matter of law to adjust his status based on his daughter’s immigrant visa petition.

         This conclusion is in accord with 8 C.F.R. § 245.1(c)(6), the regulation addressing K-1 visas,

which provides that “[a]ny alien admitted to the United States as a nonimmigrant [K-1 visa holder]” is

ineligible to adjust status except to that of a CLPR on the basis of the marriage to the K-1 visa sponsor.

8 C.F.R. § 245.1(c)(6) (emphasis added). The BIA correctly determined (albeit in a non-precedential

decision), and we now hold, that the plain language of 8 C.F.R. § 245.1(c)(6) clearly applies the § 1255(d)

bar to an alien who was originally admitted to the United States on a K-1 nonimmigrant visa. See 8 C.F.R.

§ 245.1(c)(6). Because Caraballo-Tavera was originally admitted to the United States on a K-1

nonimmigrant visa, he cannot adjust his status to that of a full LPR on any basis other than marriage to his

original K-1 visa sponsor.2

         The BIA’s decision in Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), is not to the contrary. In

that case, the BIA concluded that § 1255(d) did not prohibit an alien whose CLPR status had been


2  We do not, of course, suggest—much less hold—that an alien who fails to comply with the K-1 process is forever barred
from seeking legal immigrant or nonimmigrant status in the United States under otherwise applicable law.

                                                           6
terminated from adjusting his status to that of LPR. Id. at 311–12. Caraballo-Tavera argues that

§ 1255(d), as interpreted by the BIA in Matter of Stockwell, should not bar him from adjusting his status on

the basis of his daughter’s approved immigrant visa petition merely because his CLPR status has been

terminated. Two key distinctions undermine his reliance on the holding of Matter of Stockwell.

        First, as the BIA noted, the alien in Matter of Stockwell entered the United States as a “visitor for

pleasure” rather than a K-1 visa holder. Second, and more importantly, Matter of Stockwell was predicated

on the interpretation of 8 C.F.R. § 245.1(b)(12) (1991) (now 8 C.F.R. § 245.1(c)(5)), which bars

adjustment for “[a]ny alien who is already an alien lawfully admitted to the United States for permanent

residence on a conditional basis pursuant to section 216 of the Act.” Matter of Stockwell, 20 I&N Dec. at

311 (quoting 8 C.F.R. § 245.1(b)(12) (1991)) (emphasis added) (alteration in original). As the BIA

properly noted, the regulation at issue here has no such temporal limitation. See 8 C.F.R. § 245.1(c)(6)

(barring adjustment, except on the basis of marriage to the K-1 visa sponsor, for “[a]ny alien admitted to

the United States as a nonimmigrant [K-1 visa holder]”). Based on these distinctions, we find Matter of

Stockwell inapplicable to the facts of this case.

                                              CONCLUSION

        For the foregoing reasons, the petition for review is DENIED. As we have completed our

review, any stay of removal that the Court previously granted in this petition is VACATED, and any

pending motion for a stay of removal in this petition is DISMISSED as moot.




                                                      7
