     Case: 12-60891    Document: 00512395871    Page: 1   Date Filed: 10/03/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                               October 3, 2013

                                 No. 12-60891                   Lyle W. Cayce
                                                                     Clerk

KHANH NHAT THUY LE

                                          Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                          Respondent



                         Petition for Review of an Order
                      of the Board of Immigration Appeals


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Khanh Nhat Thuy Le petitions for review of the Board of Immigration
Appeals decision that upheld the denial of her application for an adjustment of
her status to that of a lawful permanent resident. The petition is DENIED.
      Le entered the United States at Los Angeles, California in March 1997
using a K-1 visa. Such visas permit entry in a nonimmigrant status of someone
engaged to marry a citizen or lawful permanent resident after a petition by the
prospective spouse. See 8 U.S.C. §1184(d)(1).
      The evidence supports that unknown to Le until her arrival, her ostensible
fiancé was already married. Upon discovering his marital status, she broke ties
with him and moved to Austin, Texas, where she stayed with family members.
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                                           No. 12-60891

Shortly thereafter, she traveled to Houston and met Duc Tho Ngo. They were
married in August 1997. While the two were married, Ngo applied for an
immigrant visa on Le’s behalf, which she received in April 1998.1 Ngo became
abusive to her in 2000 and 2001. In 2002, Le testified against her husband at
his criminal trial where he was convicted for an assault on her. The couple
divorced in September 2002, before Le could attempt to adjust her status to
lawful permanent resident.
       After her divorce, Le filed a self-petition under provisions of the Violence
Against Women Act (“VAWA”). See 8 U.S.C. §1154(a)(1)(A)(iii)(I). At some
point, her VAWA self-petition was granted.2 In December 2006, after learning
her petition had been granted, Le applied for an adjustment of status to lawful
permanent resident on the basis of her VAWA approval. See 8 U.S.C. §1255(a).
The United States Citizenship and Immigration Services (“USCIS”) denied the
adjustment in December 2007, because she had not married her K-1 citizen-
petitioner. USCIS determined that her status could not be adjusted. Removal
proceedings were commenced against Le in April 2008.
       In removal proceedings before an immigration judge (“IJ”), Le conceded
that she had overstayed her original K-1 visa. Her sole argument was that her
status as a VAWA self-petitioner entitled her either to an adjustment of her
status to that of a lawful permanent resident or to a cancellation of removal.
The IJ denied her either form of relief. Like the USCIS, the IJ determined that
she could not adjust her status because she did not marry her K-1 fiancé. In
addition, the IJ denied her cancellation of removal because she failed to show




       1
           It is unclear what type of visa she received in 1998, but it is not relevant to this case.
       2
        The record is not clear as to exactly when the VAWA self-petition was granted; Le
suggests that it could have been any time between 2003 and 2006. The timing, however, is not
relevant to this case.

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                                   No. 12-60891

extreme hardship. She petitioned the IJ for reconsideration and was denied.
She then appealed to the Board of Immigration Appeals.
        The BIA reviewed only the denial of her adjustment of status. Just as the
USCIS and the IJ had done, the BIA held someone who entered on a K-1 visa
who failed to marry her petitioner fiancé was ineligible for an adjustment of
status. Le petitions this Court for review.
                                  DISCUSSION
        We review questions of law, such as those of statutory interpretation, de
novo.    Martinez v. Mukasey, 519 F.3d 532, 542-43 (5th Cir. 2008).          If an
immigration statute is ambiguous, we will defer to a reasonable interpretation
of the statute by the BIA. See Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837 (1984).
        Upon petition by her United States citizen fiancé, an alien may be granted
a K-1 visa. The visa is conditioned on either a marriage or a departure from the
United States within 90 days. 8 U.S.C. §1184(d)(1); §1101(a)(13)(K)(i). Le did
not comply. A VAWA self-petitioner is an alien who in good faith married a U.S.
citizen or lawful permanent resident, resided with the spouse in the United
States, and “during the marriage . . . has been battered or has been the subject
of extreme cruelty       perpetrated by the alien’s spouse.”            8 U.S.C.
§1154(a)(1)(A)(iii)(I)(aa)-(bb). The Attorney General is granted discretion to
adjust the immigration status of certain aliens, including VAWA self-petitioners,
such that those aliens do not have to depart the United States in order to apply
for a new visa. 8 U.S.C. §1255(a). The Attorney General is prohibited from
exercising the discretion to adjust the status of an alien admitted to the United
States pursuant to a K-1 visa, except under the separate procedures that apply
to aliens who prove their marriage occurred. 8 U.S.C. §1255(d); §1186a.
        Section 1255 is unambiguous. Le, because she entered the United States
on a K-1 visa, was required to marry the person who petitioned for her visa or

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                                   No. 12-60891

depart the country within 90 days. Le did neither. Instead, she remained in the
United States and subjected herself to removal and the bar to adjustment of
status found in Section 1255(d).
      Le has argued that since it was legally impossible for her to marry her
original citizen-petitioner, her failure to marry him within 90 days should be
excused. The legal impossibility of marriage did not affect the possibility of
departing the United States once she knew the marriage could not occur.
Instead, she stayed three years before the facts alleged in her VAWA self-
petition arose. Le should have departed the country well before those events
occurred. Not having done so, Le gains no new rights from the criminal conduct
of her husband.
      Le argues that her status as a VAWA self-petitioner “trumps” Section
1255(d)’s prohibition against adjustments of status for K-1 visa holders. Le
makes several arguments that rest upon the underlying purposes of both the
VAWA amendments and Section 1255(d). She urges that the bar of removal
could not have been intended to preclude an alien in her circumstances from
adjustment of status. Sections 1255(a) and 1255(d) announce no special rules
for VAWA self-petitioners that create an exception to the Section 1255(d) bar.
We do not look for a purpose for these two provisions that might go beyond the
statutory language: “When the words of a statute are unambiguous, then, . . .
judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 249,
254 (1992) (quotations omitted).
      DENIED.




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