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(b)(6)
DATE: JAN 2 7 2015 OFFICE: Denver
IN RE: Applicant:
FILE:
lJ.S. Department of Homeland Security
U.S. Citizenship an...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Field Office Director, Denver, Colorado, certified the Application to...
(b)(6)
Page 3
NON-PRECEDENT DEC�ION
provisions of this Act [this note] shall be applicable to the spouse and child of any
...
(b)(6)
NON-PRECEDENT DEC�ION
Page 4
The next year, the Board of Immigration Appeals had occasion to address whether the sp...
(b)(6)
NON-PRECEDENT DEC§JON
Page 5
III. ANALYSIS
The question in all the cases discussed above and before us now, is whet...
(b)(6)
NON-PRECEDENT DECISION
Page 6
that the best reading of the statute does not limit eligibility in these circumstance...
(b)(6)
NON-PRECEDENT DEC�ION
Page 7
CAA, Cuban nationals (as well as their non-Cuban derivatives) who were paroled into th...
ADJUSTMENT OF STATUS FOR CUBAN REFUGEES
wednesday, august 10, 1966
House of Representatives,
Subcommittee No. 1
of the Com...
ADJUSTMENT OF STATUS FOR CUBAN REFUGEES 15
countries of the world and seek to adjust their status? May we have
your though...
16 ADJUSTMENT OF STATUS FOR CUBAN REFUGEES
those adjustments would at this time not be counted against any ceiling
which w...
ADJUSTMENT OF STATUS FOR CUBAN PtEFUGEES 17
Mr. Ball. The airlift is bringing in almost all of them. As of the
5th of Augu...
18 ADJUSTMENT OF STATUS FOR CUBAN REFUGEES
and are we, therefore, not depriving the average Cuban person of the
real leade...
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Special Consideration in Adjustment of Status for Cubans
 Cuban Adjustment Act (public law 89-732) (CAA) of ...
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Reauthorization Act of 2005) if there is demonstrated a connection between the termination of
the marriage an...
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Below compiled from Indices posted at: http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html
Adjustment ...
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Matter of Cite as: Comments & Link
Riva 12 I&N Dec. 56
(R.C. 1967)
http://www.justice.gov/eoir/vll/intdec/vol...
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Sanabria 12 I&N Dec. 396
(R.C. 1967)
http://www.justice.gov/eoir/vll/intdec/vol12/1774.pdf
Cuban admitted a c...
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Martinez-
Monteagudo
12 I&N Dec. 688
(R.C. 1968)
http://www.justice.gov/eoir/vll/intdec/vol12/1851.pdf
Becaus...
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Refugee Adjustment Act of November 2,
1966, Pub. L. No. 89-732, 80 Stat. 1161, is
30 months prior to his appl...
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adjusted pursuant to section 1 of the
Cuban Refugee Adjustment Act of
November 2, 1966, is 30 months prior to...
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an alien who leaves the United States
while an adjustment application is pending
with the USCIS returns pursu...
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AAO Non-Precedent Decisions posted on www.uscis.gov
Home > Administrative Decisions >A2 - Certification of C...
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(AAO JAN272015_01L7202) REMAND Cuban Adjustment Act with EXTRAS

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(AAO JAN272015_01L7202) REMAND Cuban Adjustment Act with EXTRAS!!!!

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(AAO JAN272015_01L7202) REMAND Cuban Adjustment Act with EXTRAS

  1. 1. (b)(6) DATE: JAN 2 7 2015 OFFICE: Denver IN RE: Applicant: FILE: lJ.S. Department of Homeland Security U.S. Citizenship and Immigration Service Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 ·U.S. Citizenship and Immigration Services APPLICATION: Application for Status as Permanent Resident Pursuant to Section I of the Cuban Adjustment Act ofNovember 2, 1966 (P.L. 89-732) ON BEHALF OF APPLICANT: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § l 03.5. Do not file a motion directly with the AAO. Thank you, /{��VJ?o �.,..Ron Rosenberg Chief, Administrative Appeals Office www.uscis.gov JAN272015_01L7202.pdf See also: Cuban Adjustment Act CAA cases 1967 2011
  2. 2. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Field Office Director, Denver, Colorado, certified the Application to Register Permanent Residence or Adjust Status (Form I- 485) to the Administrative Appeals Office (AAO) for review. The application will be remanded to the Field Office Director for further proceedings consistent with this decision. I. PERTINENT FACTS AND PROCEDURAL BACKGROUND The applicant, a native and citizen of Mexico, last entered the United States on April 15, 1997, as a B-2 visitor for pleasure, remained in the United States after her period of authorized stay, and was placed into removal proceedings on February 9, 2010. 1 On August 3, 2011, the applicant married her Cuban citizen spouse, and now seeks to adjust her status, as the spouse of a Cuban citizen, under section 1 of the Cuban Adjustment Act of 1966, Pub.L. No. 89 732, 80 Stat. 1161 (8 U.S. C. § 1255 note) (CAA). The applicant's Cuban spouse (or Cuban principal) did not, however, adjust his own status under the CAA. He entered the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U. S.C. § 1157 (the Act), and subsequently sought and obtained adjustment of status under section 209, 8 U.S.C. § 1159, the provision relating to refugee adjustment. The Field Office Director certified to the AAO his provisional decision to approve the applicant's adjustment. The question before us is whether a non-Cuban derivative spouse may adjust status under the CAA when the Cuban principal spouse adjusted status under a provision other than the CAA, but would have been eligible to adjust status under the CAA. Upon de novo review, we answer that question affirmatively but remand for further development of the record? II. APPLICABLE LAW A. The Cuban Adjustment Act Section 1 of the CAA provides, in pertinent part: [T]he status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General [now Secretary of Homeland Security (Secretary)], in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. . . . The 1 In November 2013, the Immigration Judge terminated removal proceedings to allow the applicant to pursue her adjustment of status application under the CAA before the U.S. Citizenship and Immigration Services (USCIS). See 8 C.F.R § 245.2(a)(l). 2 The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 38 1 F.3d 143, 145 (3d Cir. 2004). The entire record was reviewed and considered in deciding this appeal. See 8 C.F.R. § I 03.2(b)(l ).
  3. 3. (b)(6) Page 3 NON-PRECEDENT DEC�ION provisions of this Act [this note] shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States, . . . . Pub.L. No. 89-732, 80 Stat. 1161 (8 U.S.C. § 1255 note) (emphasis added). B. Case Law Several prior cases provide guidance relevant to our inquiry, but none have directly addressed the scenario before us today. First, in Matter ofMilian, 13 I&N Dec. 480 (Acting Reg. Comm. 1970), the Acting Regional Commissioner of the legacy Immigration and Naturalization Service (INS) concluded that the Nicaraguan spouse of a Cuban national was eligible to adjust status under the CAA even though she had married her Cuban spouse after he himself had adjusted under the · CAA. Noting the CAA conferred;eligibility to family members of "any alien described in this subsection," the Acting Regional Commissioner found that phrase to be defined by the CAA to include six criteria: 1. [The alien] is a native or citizen of Cuba and 2. has been inspected and admitted or paroled into the United States subsequent to January 1, 1959; and 3. has been physically present in the United States for at least two years, 3 if the alien; 4. makes an application for such adjustment; and 5. is eligible to receive an immigrant visa; and 6. is admissible to the United States for permanent residence. !d. at 480-481. In Milian, the District Director had denied adjustment to the non-Cuban derivative spouse because the Cuban principal, having already adjusted status, was deemed no longer "eligible to receive an immigrant visa" and thus not "an alien described in [section 1 of the CAA]." !d. at 481. The Acting Regional Commissioner reversed this decision, concluding that only the first three criteria under section 1 "described" an eligible alien, i.e., that the individual be a Cuban native or citizen, inspected and admitted or paroled into the United States subsequent to January 1, 1959, and physically present in the United States for at least two years. The remaining three criteria, the Acting Regional Commissioner stated, were "action[s] and conditions that an alien may take and must meet." !d. Because the statute did not make any specific exceptions for marriages occurring after the initial adjustment, and the applicant's Cuban spouse clearly met the first three criteria, the Acting Regional Commissioner concluded that the Cuban spouse was "an alien described in [section 1]". !d. at 482. The applicant was therefore eligible to adjust under that section, notwithstanding the fact that her marriage was subsequent to her Cuban spouse's adjustment. 3 The CAA initially required two years of physical presence in the United States. This was amended to a single year in the Refugee Act of 1980, Pub.L.No.96-212, § 203(i), 94 Stat.102, 108 (1980).
  4. 4. (b)(6) NON-PRECEDENT DEC�ION Page 4 The next year, the Board of Immigration Appeals had occasion to address whether the spouse of a Cuban citizen could adjust status under the CAA when the Cuban principal himself was denied adjustment thereunder (on criminal grounds). Matter ofQuijada-Coto, 13 I&N Dec. 740 (BIA 1971). The Board answered that question in the negative, holding without elaboration that "Congress did not intend to apply the benefits of the Act of November 2, 1966 [the CAA] to the spouse of an alien described in the Act, when the alien himself has been denied adjustment of status under the Act." Id. at 741. The third decision relevant to our analysis is Taro v. Sec 'y, US. Dep 't of Homeland Sec., 707 F.3d 1224 (11th Cir. 2013), in which the United States Court of Appeals for the 11th Circuit confronted the question of whether a non-Cuban spouse is eligible to self-petition for adjustment under the CAA as the battered spouse of a Cuban native or citizen when her Cuban husband himself had been denied adjustment under the CAA due to his criminal history. 4 In Taro, the court also first looked to the same phrase - "any alien described in this subsection" - and enumerated five statutory criteria that a Cuban principal must meet to fall under that definition: (1) inspection/admission or parole into the United States subsequent to January 1, 1959; (2) one year's physical presence; (3) making an application for such adjustment; (4) eligibility to receive an immigrant visa; and (5) admissibility to the United States for permanent residence. 5 Id. at 1228. The government argued that the Cuban principal failed the final criterion, because he was not "admissible to the United States for permanent residence" due to his criminal convictions. The applicant, for her part, argued that only the first two criteria, i.e., admission or parole into the United States subsequent to January 1, 1959, and physical presence for at least one year, were proper definitional requirements. The remaining three, the applicant argued, only discussed the Attorney General's discretion to adjust a Cuban citizen's status. The court rejected the applicant's argument, reading each criterion "to be an indispensable element of 'any alien described in this subsection,' because all five clauses specify what a Cuban alien must do to qualify for adjustment." Id. Citing Matter ofQuijada-Coto, the court concluded that, because the applicant's husband was ineligible for adjustment of status due to his criminal inadmissibilities, he was not "an alien described in section 1," and the applicant therefore could not self petition under the CAA.6 Id. at 1229. 4 Two subsequent statutes, relating to violence against women, amended Section 1 of the CAA. See Victims of Trafficking and Violence Protection Act, Pub.L. No. 106-386, § 1509, 114 Stat. 1464, 1530-31 (2000) and the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109-162, § 823, 1 19 Stat. 2960, 3063. These provisions create an exception for the residence requirement of the CAA when the non­ Cuban spouse or child have been the victims of battering or extreme cruelty, and allow for self-petitioning after the termination of the marriage to the Cuban spouse by death or termination for a two-year period thereafter (under certain conditions not at issue here). 5 Although the Eleventh Circuit in Taro enumerates five criteria, and the Acting Regional Commissioner in Matter of Milian listed six, this is a distinction without a difference for purposes of their- and our -analyses. 6 The court found Matter ofMilian to be inapposite to Toro's situation, stating that "Toro misreads Milian; the case simply holds that a qualifying relationship for purposes of section I may be established after the Cuban alien's adjustment." 707 F.3d 1224, 1229 n.3. The court did not address Milian's holding that only the first three criteria in section 1 were definitional, and the last three were not.
  5. 5. (b)(6) NON-PRECEDENT DEC§JON Page 5 III. ANALYSIS The question in all the cases discussed above and before us now, is whether a Cuban principal meets the definition of "any alien described" in section 1 of the CAA and can therefore confer CAA adjustment eligibility to a non-Cuban derivative spouse. Matter ofMilian held that the non­ Cuban spouse was eligible to adjust under that provision, despite the marriage to her Cuban spouse occurring after the spouse's own adjustment, because the Cuban spouse met the section 1 definition both before and after the marriage. 13 I&N Dec. at 482. Matter of Quijada-Coto and Taro v. Sec y, US Dep 't o.fHomeland Sec., both held that, if the Cuban principal's application for adjustment under the CAA was denied due to a lack of admissibility, the Cuban principal could not meet the definition of "an alien described in section 1, " and hence the non-Cuban spouse could not adjust under the CAA either. Matter of Quijada-Coto, 13 I&N Dec. at 741; Taro v. Secy. of US Dep 't ofHomeland Sec., 707 F.3d at 1229.7 In this case, the evidence of record shows that the Cuban principal readily meets all but one of the criteria listed under section 1: he is Cuban; he was admitted into the United States after January 1, 1959; and he has been physically present in this country for more than one year. He is eligible to receive an immigrant visa and is admissible to the United States, having already received lawful permanent resident status. Had he applied for adjustment under the CAA, the record indicates that he would have been eligible. The remaining question, then, is whether the criterion in Section 1 that the applicant "makes an application for such adjustment" is limited strictly to adjustment under the CAA and not by any other means. The CAA was enacted before many subsequent changes in U. S. immigration laws and practices, and the statutory text accordingly does not provide a ready answer to this question. 8 We conclude 7 We note that the part of the analysis in Matter ofMilian has been superseded by subsequent case law. If only the first three criteria delineated in that decision define aliens described under section I, i.e., Cuban natives or citizens who enter the United States after January 1, 1959, and who have been physically present for at least one year, then the criminal spouses of the beneficiaries in Matter ofQuijada-Coto and Toro v. Secretary, DHS would have been able to confer CAA benefits to their non-Cuban spouses, contrary to the holdings in those two cases. But the ultimate holding in Matter of Milian, that adjustment under the CAA does not cause a Cuban principal to fall outside the definition of "an alien described under [section I]," has stood for more than four decades and continues to have general applicability. 8 When the CAA was enacted in 1966, ". . . natives of any country of the Western Hemisphere, or of any adjacent island named in section IOI(b) (5) of the Immigration and Nationality Act,[were] precluded from applying for adjustment to permanent resident status while in the United States." See H.R.Rep.No.1978, 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N.379 2, 3799 (letter of Douglas Macarthur II, Assistant Secretary for Congressional Relations, for the Secretary of State). This hemispheric preclusion was designed to channel most immigrant status adjudication through the overseas consular processing mechanism; that is, we required our closest neighbors to depart the United States and obtain an immigrant visa abroad to become a lawful permanent resident. Subsequently, Congress largely eliminated this geographic limitation to domestic adjustment and enacted several other adjustment­ related provisions. The legislative history indicates, however, that Congress included the "eligible to receive an immigrant visa" requirement to ensure that CAA applicants would be put through "the same screening proceedings" as "anyone else who comes in on an immigrant visa ...." See Federation for American Immigration Reform (FAIR) v. Meese 643 F.Supp. 983, 988 (S.D.Fla. 1986)(quoting Hearings on the Adjustment of Status for Cuban Refugees before a Subcommittee ofthe House Judiciary Committee, 89th Cong.2d Sess.pp.15-18). Even assuming that, at the time of its enactment, the CAA was unambiguous and required the principal Cuban to adjust status under
  6. 6. (b)(6) NON-PRECEDENT DECISION Page 6 that the best reading of the statute does not limit eligibility in these circumstances to adjustment under the CAA. Absent any textual signposts or legislative history regarding the timing or form­ equivalence of derivative adjustment under the CAA, we conclude that Congress, in drafting section 1, likely contemplated that derivative spouses and children would typically apply along with their qualifying Cuban family member for adjustment under the CAA. The CAA does not, however, explicitly limit derivative CAA eligibility to contemporaneous adjustment with the Cuban family member and only under the CAA. Milian settled in 1970 that contemporaneous adjustment of derivatives is not required, and Congress is presumed to have adopted its interpretation, having amended the statute more than once since that decision without disturbing its holding. See Lorillard v. Pons, 434 U. S. 575, 580 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. ") (citations omitted); see also Federation for American Immigration Reform (FAIR) v. Meese, 643 F. Supp. 983, 988 ("In 1980, Congress continued to acknowledge the viability of the [CAA] by reducing the physical presence prerequisite from two years to one. Basic principles of statutory construction dictate that subsequent enactments can be used to interpret pre-existing legislation. "). To date, case law has only limited non-Cuban spousal adjustment under the CAA to instances in which the Cuban principal was or would be denied adjustment under that provision, and hence cannot meet the definition of "any alien described" in section 1. This is not the case here; the applicant's spouse could have adjusted under the CAA, but instead adjusted pursuant to section 209 of the Act, the proper course for individuals entering the United States as refugees. If he could have adjusted under the CAA, it follows that he was an "alien described in this subsection, " and thus his non-Cuban spouse may be eligible to adjust her status as a derivative under the terms of the CAA. Our interpretation of the term "such adjustment" as including adjustment under provisions other than the CAA is consistent with both the CAA legislative history as well as long-standing U. S. policy regarding Cuban migration. With respect to the legislative history, then Deputy Attorney General, Ramsey Clark, recommended that Congress permit non-Cuban spouses and children to derive adjustment from the Cuban principal to "maintain the unity of the family[.]" Congress clearly acceded. See H.R. Rep. No. 1978, 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N. 3792, 3799 (letter of Deputy Attorney General Ramsey Clark). With respect to U. S. migration policy, the United States consistently has endeavored to promote safe, legal, and orderly Cuban migration. See United States-Cuba Agreement of September 1994 [the September 9, 1994 Joint Communique] ("The United States and the Republic of Cuba are committed to directing Cuban migration into safe, legal, and orderly channels[.]"); United States/Republic of Cuba Joint Statement (White House, Office of the Press Secretary, May 2, 1995) ("These steps build upon the September 9, 1994 agreement and seek to address safety and humanitarian concerns and to ensure that migration between the countries is safe, legal, and orderly"). DHS routinely adjusts, under the the CAA itself (because no other avenue existed for natives of our fair hemisphere), subsequent amendments to the INA's adjustment provisions now create ambiguity in the CAA's pertinent text.
  7. 7. (b)(6) NON-PRECEDENT DEC�ION Page 7 CAA, Cuban nationals (as well as their non-Cuban derivatives) who were paroled into the United States after irregular and dangerous travel. Were we today to decline similar derivative adjustment to the family of a Cuban principal, lawfully admitted and later adjusted as a refugee under sections 207 and 209 of the Act, we would unfairly penalize those who pursued safe, legal, and orderly channels of migration promoted by the United States as an alternative to dangerous maritime and border crossings. While we hold as a matter of law that the specific provision under which a Cuban principal adjusts status does not impact a non-Cuban derivative's eligibility for CAA adjustment, we find the factual record in this case _lacks documentation to establish a valid marriage to the Cuban principal. Although the record contains a copy of the applicant's marriage certificate to the Cuban principal, it also indicates that he was previously married. The applicant, however, has not submitted a divorce decree to show the termination of that prior marriage. In addition, the record reflects multiple addresses existed for the applicant during the duration of her matTiage that differ from her spouse's, calling into question whether the applicant was residing with him during this time, a requirement under the plain language of the CAA. Absent a valid marriage, and residence with the Cuban spouse, the applicant is ineligible for adjustment under the CAA. IV. CONCLUSION We cannot currently conclude that the applicant has met her burden to establish eligibility for CAA adjustment. Section 291 of the Act, 8 U.S.C. § 1361. We remand to the Field Office Director to determine in the first instance the bona fides of the applicant's marriage and cohabitation. ORDER: The matter is remanded to the Field Office Director for further proceedings consistent with this decision.
  8. 8. ADJUSTMENT OF STATUS FOR CUBAN REFUGEES wednesday, august 10, 1966 House of Representatives, Subcommittee No. 1 of the Committee on the Judiciary, Washington, D.C. The subcommittee met, pursuant to notice, at 10:15 a.m. in room 2141, Rayburn House Office Building, Hon. Michael A. Feighan (chairman of the subcommittee) presiding. Present: Representatives Feighan, Chelf, Rodino, Donohue, Gilbert, Moore, and Cahill. Also present : Garner J. Cline, counsel, and Donald G. Benn, asso ciate counsel. (H.R. 15183, H.R. 16908, H.R. 15182, H.R. 10808, and H.R. 13393, follow:) [U.K. 15183,89th Cong., 2d sess.] A BILL To adjust the status of Cuban refugees to that of lawful permanent residents of the United State Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding the provision of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native and citizen of Cuba who was inspected and admitted or paroled into the United States subsequent to January 1, 1959, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, and (2) the alien is eligible to receive an immi grant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of the date of his last entry into the United States. [II. R. 16938,89th Cong., 2d sess.] A BILL To adjust the status of Cuban refugees tojthat of lawful permanent residents of the United States Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding the provision of section 245(c) of the immigration and Nationality Act, the status of any alien who is a native and citizen of Cuba who was inspected and admitted or paroled into the United States, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, and (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of the date of the approval of the applica tion. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States. Sec. 2. Except as otherwise specifically provided in this Act, the definitions contained in sections 101 (a) and (b) of the Immigration and Nationality Act shall apply in the administration of this Act. Nothing contained in this Act shall be 1 Generatedon2015-06-1202:46GMT/http://hdl.handle.net/2027/pst.000045412318 PublicDomain,Google-digitized/http://www.hathitrust.org/access_use#pd-google
  9. 9. ADJUSTMENT OF STATUS FOR CUBAN REFUGEES 15 countries of the world and seek to adjust their status? May we have your thoughts with respect to that? Mr. Ball. Well, I wouldn't think it would make much difference. The present situation is this. In Spain and Mexico we have a number of Cubans who are applying each month for immigrant status. Last year there were about 300 monthly in Spain and 500 monthly in Mexico. The Cubans that are in those two countries, I think, would continue to do what they have been doing. They would make appli cation to local consular offices there and they would be granted immi grant status in due course after the investigation had been made. Mr. Moore. Do we have any facts and figures as to the number of Cuban refugees that are in a status of asylum in other countries and outside the continental limits of the United States? Mr. Ball. Yes. There are about 46,000 in other countries. And I can give you the breakdown or put it in the record, if you would like. Mr. Feighan. I think that would be good. Mr. Moore. May we have that? I think it would be very helpful. Mr. Ball. Yes. (The information requested appears below.) Estimated Cuban refugees in other countries Argentina 1, 884 Brazil 350 Chile.... . 30 Colombia 400 Costa Rica 1, 000 Dominican Republic 1, 486 Ecuador 250 El Salvador 200 Guatemala 400 Honduras 1, 000 Jamaica . 64 Mexico . 10, 300 Nicaragua 58 Panama 2, 000 Paraguay 2 Peru 1, 800 Uruguay 20 Venezuela 10, 000 Total for Latin America 31, 244 Plus Spain 15, 000 Grand total 46,244 Mr. Moore. May I inquire as to whether or not the Department of State has discussed this suggested change in our law with any repre sentatives of the Cuban revolutionary groups that are in existence in this country today as to what their thoughts might be and what effect such changing of status might have on any of the plans that these various "revolutionary" groups might have? Mr. Ball. I am not aware of any discussions of that kind, Mr. Moore. I don't believe we have had any. Mr. Moore. May I conclude my statement by asking this question? Mr. Secretary, you are well aware of the contemplated control of the immigration flow into the Western Hemisphere that came about as a result of the change in the immigration law that was made by the Congress last year. Meeting that Cuban problem at this time would seem to me, on the one hand, to have a very salutary effect in that Generatedon2015-06-1202:43GMT/http://hdl.handle.net/2027/pst.000045412318 PublicDomain,Google-digitized/http://www.hathitrust.org/access_use#pd-google
  10. 10. 16 ADJUSTMENT OF STATUS FOR CUBAN REFUGEES those adjustments would at this time not be counted against any ceiling which we may apply in the future to the Western Hemisphere, but at the same time if it is not taken care of now it can very well —I say to the subcommittee —destroy, and have a very dampening effect upon the immigration flow that is contemplated to be controlled. Is that not a fair statement, Mr. Secretary? Mr. Ball. That is right, Mr. Moore. As a matter of fact, since the 1st of December 1965 when the new immigration law became effec tive the rate of flow of the granting of visas in Spain and Mexico has markedly declined to about 200 monthly in Spain, from 300 monthly, and to 100 monthly in Mexico from 500 monthly. Mr. Moore. I would defer any further questions, Mr. Chairman. Thank you, Mr. Secretary. Mr. Feighan. Mr. Rodino? Mr. Rodino. Mr. Secretary, first of all, may I say that I am im pressed with your statement. You have made crystal clear the gen eral policy reasons for the need to enact the legislation before us. I wholeheartedly agree with that policy. My experience has been such, as a representative of the area of Newark, where there are many Cubans, that they certainly are a welcome asset in their community. They have made a very valuable contribution and, as you describe them, they certainly would be fine citizens if ever they sought to apply for citizenship. I think, certainly, in keeping with our Ameri can policy on a humanitarian basis and for practical reasons in our own best interests we must give these people every consideration, recognizing the very many problems that have beset them and recog nizing that they are victims of a system which they repudiate and reject. This certainly is another indication, if we enact this legisla tion, of the kind of thinking that America can be justly proud and hold out to the rest of the world. It is another indication of our American process working. With that, Mr. Secretary, may I address just a few questions to you? Although it may be impossible to project how long or how many Cubans will continue to seek exit from Cuba to the United States, could you possibly estimate for us how many would enter the United States monthly under present arrangements? Mr. Ball. At the present time the flow is running at about 4,000 monthly and we would assume that this would continue for some time. Let me ask my colleague here if he has any more precise view on that. Mr. Heymann. No. Mr. Ball. We can't tell with any precision at all when this flow is going to begin to taper off. Mr. Rodino. Of course, this has all been taken into consideration when you decided what the policy was to be? Mr/ Ball. That is right. Mr. Rodino. Recognizing that we could absorb them? Mr. Ball. Right? Mr. Rodino. I think, Mr. Secretary, some of us did not hear ex actly what the figure was. Did you say 3,000 or 4,000. Mr. Ball. 4,000. Mr. Rodino. 4,000? Mr. Ball. Yes. Mr. Rodino. Kow many would you say, Mr. Secretary, are coming in by airlift? Generatedon2015-06-1202:43GMT/http://hdl.handle.net/2027/pst.000045412318 PublicDomain,Google-digitized/http://www.hathitrust.org/access_use#pd-google
  11. 11. ADJUSTMENT OF STATUS FOR CUBAN PtEFUGEES 17 Mr. Ball. The airlift is bringing in almost all of them. As of the 5th of August of this year almost 31,000 had entered by airlift. That is running at the rate of 160 to 170 daily during each 5-day week. This is the bulk of the inflow that is occurring now. It accounts for a very high percentage of it. Mr. Rodino. If permanent resident status seems to be such a neces sary ingredient for a successful career in the United States for these Cubans, Mr. Secretary, why, at the present time, haven't more Cubans taken advantage of our consular offices in Canada? Mr. Ball. It is very difficult for them. Let's take the case of a typical Cuban refugee. He may find himself in the United States practically penniless, having had taken away from him everything he possessed. He arrives in the United States with no money, he has the immediate requirement of getting himself some kind of em ployment in order to keep himself and, in most cases, his family alive. If he has to leave that employment for an indeterminate period —be cause in view of the state of congestion in the consular offices on the border it may take quite a little time —he has to give up his ability to earn money and he has to find the money to make the trip and he has to find some way to sustain himself and to send money to his family while he is in Canada or in Mexico. This is simply beyond the possi bilities for a great many Cubans who are faced with the hard necessities of trying to earn a living in an unfamiliar environment, a time of great difficulty for them. Mr. Rodino. And, Mr. Secretary, you feel confident that the other countries of the world would understand that this kind of special help that we propose to extend to the Cuban refugee is done because it is necessary, because it is practical? It would not have that kind of an effect which might disappoint these other nations and cause them to feel that we are giving special treatment and preference over others? Mr. Ball. The area of greater sensitivity is among, of course, the states of the other American Republics. We are entirely satisfied that they will understand the purposes for which this was done. They know our position on Cuba. We make it clear to them con stantly. They are in agreement with our position on Cuba. They would recognize this as a humanitarian gesture which is quite con sistent with the position of the United States. Mr. Rodino. Thank you very much, Mr. Secretary. Mr. Ball. Thank you. Mr. Feighan. Mr. Cahill? Mr. Cahill. Yes, Mr. Chairman. First of all, I apologize because other congressional commitments did not permit me to hear your testimony, but I did have the oppor tunity to read it, Mr. Secretary. And I join my colleagues in approv ing, first, the humanitarian approach, the desirability of being helpful to the people who are the victims of this oppression. But there are just a couple of questions that raise themselves in my mind. It is my understanding that our goal is that Cuba shall be freed from Communist domination and shall return again to the free world family of nations. The question that poses itself in my mind is this: Are we not accepting as refugees in the United States the very people who, in the ordinary course of events, would be leading that revolution in Cuba? And are we not taking from Cuba today the real leaders of Cuba, the ones that Castro wants to get out of Cuba Generatedon2015-06-1202:44GMT/http://hdl.handle.net/2027/pst.000045412318 PublicDomain,Google-digitized/http://www.hathitrust.org/access_use#pd-google
  12. 12. 18 ADJUSTMENT OF STATUS FOR CUBAN REFUGEES and are we, therefore, not depriving the average Cuban person of the real leadership that will be necessary to foment a revolution to restore the country to a democracy? Mr. Ball. Well, this, I think, Mr. Cahill, goes to the question of the airlift and the efforts that we have made to assist people in Cuba who did not want to live under a totalitarian regime, people who wanted to leave Cuba and find a refuge in the United States. I think that for the United States to deny the possibility of these people leaving and coming to this country would be more discouraging in their efforts to bring about a free regime than almost anything we could do. I think to say to people, because we think "you are the potential seeds of revolutionary ferment and are going to be the leaders, that you have to stay in what amounts to a kind of captivity in Cuba," is something that we just can't do. So that I believe that what we did in assisting those to leave, who Castro was willing to per mit to leave, by the airlift has been altogether right and I think that this further step of giving them the option of citizenship, if they wish it and wish to live as good citizens of this country, is altogether right, also. I don't think we extinguish in any way the flame that burns in their hearts for the liberation of their country, and I think that as the conditions develop over time, these people will go home when the possibilities permit them to. Mr. Cahill. Don't you think the efforts that will pave the way for eventual American citizenship will be a deterrent rather than an in centive for them to return to Cuba? Mr. Ball. I wouldn't think so because the reasons that would lead them to return to Cuba is that love of country which I think you will find is very deep among most Cubans. They want to go back to Cuba. They want to rebuild their country and they will do so when the op portunity Mr. Cahill. Then why should we grant to these people American citizenship? Mr. Ball. In the meantime, I think we should give them the option of being able to live in this land as good citizens of the United States even though some of them will ultimately return. Mr. Cahill. I agree with that, but my question would be, isn't there another way of doing this besides granting of citizenship? In other words, couldn't the States, for example, in this particular case, make it possible for a person who is in this status to practice medicine and to teach even though he is not an American citizen? Mr. Ball. The laws on this vary very widely from State to State. I think that in a great many States there are serious inhibitions against practicing professions by those who are not citizens and I know of nothing we can do to change those laws. There are con siderations for those even beyond the professions. People who are going to be living away from their native land for an indefinite period of time really ought to have the right to live as citizens in the land in which they are. Mr. Cahill. You indicate there are 4,000 coming in monthly? Mr. Ball. That is right. Mr. Cahill. This legislation would be open-ended, would it not; there would be no termination, and there could be an unlimited number. All of those who wanted to come in would be acceptable Generatedon2015-06-1202:44GMT/http://hdl.handle.net/2027/pst.000045412318 PublicDomain,Google-digitized/http://www.hathitrust.org/access_use#pd-google
  13. 13. Page 1 of 12 Special Consideration in Adjustment of Status for Cubans  Cuban Adjustment Act (public law 89-732) (CAA) of November 2, 1966  AKA: Cuban Refugee Act of November 2, 1966 (P.L. 89-732)  Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of the District of Columbia Appropriations Act, 1998,( Pub. L. 105-100) November 19, 1997. CUBAN REFUGEES: Adjustment OF STATUS Section 606 of div. C of Pub. L. 104–208 provided that: “(a) In General.—Public Law 89–732 [set out below] is repealed effective only upon a determination by the President under section 203(c)(3) of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 [22 U.S.C. 6063(c)] (Public Law 104–114) that a democratically elected government in Cuba is in power. “(b) Limitation.—Subsection (a) shall not apply to aliens for whom an application for adjustment of status is pending on such effective date.” Pub. L. 89–732, Nov. 2, 1966, 80 Stat. 1161, as amended by Pub. L. 94–571, §8, Oct. 20, 1976, 90 Stat. 2706; Pub. L. 96–212, title II, §203(i), Mar. 17, 1980, 94 Stat. 108; Pub. L. 106– 386, div. B, title V, §1509(a), Oct. 28, 2000, 114 Stat. 1530; Pub. L. 109–162, title VIII, §823(a), Jan. 5, 2006, 119 Stat. 3063, provided: “That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act [subsec. (c) of this section], the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States, except that such spouse or child who has been battered or subjected to extreme cruelty may adjust to permanent resident status under this Act without demonstrating that he or she is residing with the Cuban spouse or parent in the United States. In acting on applications under this section with respect to spouses or children who have been battered or subjected to extreme cruelty, the Attorney General shall apply the provisions of section 204(a)(1)(J) [probably means section 204(a)(1)(J) of the Immigration and Nationality Act, which is classified to section 1154(a)(1)(J) of this title]. An alien who was the spouse of any Cuban alien described in this section and has resided with such spouse shall continue to be treated as such a spouse for 2 years after the date on which the Cuban alien dies (or, if later, 2 years after the date of enactment of Violence Against Women and Department of Justice Reauthorization Act of 2005) [Jan. 5, 2006], or for 2 years after the date of termination of the marriage (or, if later, 2 years after the date of enactment of Violence Against Women and Department of Justice
  14. 14. Page 2 of 12 Reauthorization Act of 2005) if there is demonstrated a connection between the termination of the marriage and the battering or extreme cruelty by the Cuban alien. “Sec. 2. In the case of any alien described in section 1 of this Act who prior to the effective date thereof [Nov. 2, 1966], has been lawfully admitted into the United States for permanent residence, the Attorney General shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act [Nov. 2, 1966], whichever date is later. “Sec. 3. Section 13 of the Act entitled ‘An Act to amend the Immigration and Nationality Act, and for other purposes’, approved October 3, 1965 (Public Law 89–236) [amending subsecs. (b) and (c) of this section] is amended by adding at the end thereof the following new subsection: “ ‘(c) Nothing contained in subsection (b) of this section [amending subsec. (c) of this section] shall be construed to affect the validity of any application for adjustment under section 245 [this section] filed with the Attorney General prior to December 1, 1965, which would have been valid on that date; but as to all such applications the statutes or parts of statutes repealed or amended by this Act [Pub. L. 89–236] are, unless otherwise specifically provided therein, continued in force and effect.’ “Sec. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101(a) and (b) of the Immigration and Nationality Act [section 1101(a), (b) of this title] shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act [this chapter] or any other law relating to immigration, nationality, or naturalization. “Sec. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 of this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in the case of any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976 [see Effective Date of 1976 Amendment note above].” [Pub. L. 109–162, title VIII, §823(b), Jan. 5, 2006, 119 Stat. 3063, provided that: “The amendment made by subsection (a)(1) [amending Pub. L. 89–732 set out above] shall take effect as if included in the enactment of the Violence Against Women Act of 2000 (division B of Public Law 106–386; 114 Stat. 1491).”] [Pub. L. 106–386, div. B, title V, §1509(b), Oct. 28, 2000, 114 Stat. 1531, provided that: “The amendment made by subsection (a) [amending Pub. L. 89–732 set out above] shall be effective as if included in subtitle G [§40701 et seq.] of title IV of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103–322; 108 Stat. 1953 et seq. [see Tables for classification].)”] [Section 204(b)(1)(C) of Pub. L. 96–212 provided that the amendment of section 1 of Pub. L. 89–732, set out above, by Pub. L. 96–212 is effective immediately before Apr. 1, 1980.] Above from: http://143.231.180.80/view.xhtml?req=cuban+adjustment&f=&fq=true&num=2&hl=true
  15. 15. Page 3 of 12 Below compiled from Indices posted at: http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html Adjustment of status: • Sec. 1, Act of Nov. 2, 1966: (shows I&N Dec. vol. & page or Interim Dec.#) • applicant native & citizen of Italy who entered as crewman; spouse of Cuban within sec. 1; eligible to apply: 13-575 • applicant native of Cuba but not refugee; eligible; 12-699 • applicant (neither native nor citizen of Cuba) married to Cuban citizen after latter's adj. under sec. 1; eligible; 13-480 • applicant (neither native nor citizen of Cuba) separated from Cuban citizen spouse; ineligible; 12-369 • applicant within public charge provisions of secs. 212(a)(l5) & 241(a)(8); 12-432 • arrival as nonimmigrant or parolee a requisite for benefits sec. 1; 12-143 • barred from citizenship as convicted murderer, statutory eligibility not withstanding; 13-166 • crewman, admission as; effect; 12-396; 13-575 • discretionary denial; 12-355 • discretionary nature of relief not withstanding statutory eligibility; 12- 432 • inspected and admitted on Jan. 1, 1959; ineligible; 12-788 • "inspected and admitted or paroled"; question of; 12-112, 291, 549 • "last arrival"; construed; 12-56 • last entry illegal; ineligible; 12-688 • last entry prior to Jan. 1, 1959; ineligible; 12-247 • spouse of alien within sec. 1; eligible not withstanding entry as crewman; 13-575 • spouse of alien within sec. 1; ineligible where alien himself denied adjustment; 13-740 • spouse of alien within sec. 1; last entry prior Jan. 1, 1959; ineligible; 12- 247 • effective date of acquisition of lawful permanent resident status; #3069, 3092 • jurisdiction of Immigration Judge to consider application for; #3450, 3639 • statute of limitations for rescission of adjustment of Cuban aliens; #2627
  16. 16. Page 4 of 12 Matter of Cite as: Comments & Link Riva 12 I&N Dec. 56 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1691.pdf Overly strict and rigid reading of liberal and remedial legislation was sharply disfavored in this case or any other. Alvarez-Riera 12 I&N Dec. 112 (BIA 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1705.pdf Cuban EWI ineligible for AOS. MTR in deportation proceedings in order to adjust under new law was denied without prejudice, because he was not “inspected, admitted, or paroled”. Benguria Y Rodriguez 12 I&N Dec. 143 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1713.pdf Backdating prohibited when the applicant originally arrived on an Immigrant Visa. Sec. 2 only backdates when entry was made as a nonimmigrant or parolee. Guerrero 12 I&N Dec. 247 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1738.pdf Denied on a technicality. You might call it a “reverse loophole” or more simply and appropriately, a noose. Menendez 12 I&N Dec. 291 (DD 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1748.pdf Change of status within the United States equated to “inspection and admission”. Marchena 12 I&N Dec. 355 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1767.pdf Interpreting a specific criminal statute as not a CIMT but denying adjustment as a matter of discretion due to still being on parole for the criminal conviction. Bellido 12 I&N Dec. 369 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1769.pdf Non-Cuban spouse who is NOT residing with the Cuban spouse in the U.S., found ineligible to adjust as a derivative of a “Cuban refugee”. In fact, they separated with no potential for reconciliation. Even though she resided in Cuba and had four Cuban children, she never acquired Cuban nationality in her 16 years residing there. While she qualifies as a political refugee, the Cuban Adjustment provision did not apply to her situation.
  17. 17. Page 5 of 12 Sanabria 12 I&N Dec. 396 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1774.pdf Cuban admitted a crewman is still eligible for this adjustment provision. Mesa 12 I&N Dec. 432 (Dep. Assoc. Comm’r 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1788.pdf “It is axiomatic that laws remedial in nature,..., should be construed liberally.” At p.435 Public charge grounds held inapplicable as a matter of discretion as well as Congressional Intent, Executive Order, and public policy issues. Funds were set aside specifically for this class of refugee, therefore to label them as inadmissible and deportable as “public charges” and this deny adjustment is an absurd result. This case describes an old English common-law case that set aside the King’s Law which stated that breaking out of prison is a felony. The circumstances were that the prisoner broke out because the prison was on fire. It was held that “he is not to be hanged because he would not stay to be brunt”. Absurd! Rodriguez 12 I&N Dec. 549 (R.C. 1967) http://www.justice.gov/eoir/vll/intdec/vol12/1821.pdf The statute required the applicant to be admitted or paroled subsequent to (meaning “after”) Jan. 1, 1959, but he originally arrived on that exact date. He immediately sought political asylum and was “paroled” at time of entry and referred for inspection. He was later re-paroled several times and ultimately “paroled indefinitely” as a Cuban refugee. Eventually he filed for adjustment years later when the new law passed. The DD denied the adjustment (believing he was constrained) but certified the decision for review. The denial was reversed. The re- parole cured the defect in the original parole upon entry.
  18. 18. Page 6 of 12 Martinez- Monteagudo 12 I&N Dec. 688 (R.C. 1968) http://www.justice.gov/eoir/vll/intdec/vol12/1851.pdf Because the applicant’s very last entry was without inspection, he is ineligible. This is true even though he had previously entered legally and subsequent to the statutorily prescribed date of Jan. 1, 1959. Matter of Riva, distinguished. Masson 12 I&N Dec. 699 (BIA 1968) http://www.justice.gov/eoir/vll/intdec/vol12/1855.pdf Citizen of Haiti who was born in Cuban is eligible for adjustment as Cuban refugee. Martin-Arencibia 13 I&N Dec. 166 (R.C. 1969) http://www.justice.gov/eoir/vll/intdec/vol13/1946.pdf DD denied on wrong grounds. Case remanded for further fact-finding (to search for alternate grounds for denial, if one existed-perhaps due to psychiatric treatment history). Although the applicant was convicted of murder in Cuba, he is not “ineligible to citizenship” as used in § 212 which is specifically reserved for draft dodgers/avoiders, evaders, and deserters. Milan 13 I&N Dec. 480 (Act. R.C. 1970) http://www.justice.gov/eoir/vll/intdec/vol13/2023.pdf Non-Cuban spouse who married a Cuban who had already adjusted status found eligible notwithstanding sequence of events in this case. Costarelli 13 I&N Dec. 575 (BIA 1970) http://www.justice.gov/eoir/vll/intdec/vol13/2047.pdf Italian national eligible as “spouse of a Cuban”. Quijada-Coto 13 I&N Dec. 740 http://www.justice.gov/eoir/vll/intdec/vol13/2092.pdf Non-Cuban derivative spouse ineligible when principal Cuban spouse was denied adjustment of status. Carrillo- Gutierrez 16 I&N Dec. 429 (BIA 1977) http://www.justice.gov/eoir/vll/intdec/vol16/2627.pdf INA § 246 rescission applies to Cuban adjustments. The statute of limitations is controlled by date of approval and NOT by the backdated status start date. Diaz-Chambrot 19 I&N Dec. 674 (BIA 1988) http://www.justice.gov/eoir/vll/intdec/vol19/3069.pdf (1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban
  19. 19. Page 7 of 12 Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. (2) In consideration of an application for a waiver of excludability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), the Board of Immigration Appeals found the respondent statutorily eligible, concluding that the effective date of his acquisition of lawful permanent resident status was governed by the provisions of the Cuban Refugee Adjustment Act of November 2, 1966; in so holding, the Board modified its decision in Matter of Carrillo- Gutierrez, 16 I&N Dec. 429 (BIA 1977), to the extent that it had stated obiter dictum that the retroactivity provisions of the Cuban Refugee Adjustment Act applied solely to residency requirements for naturalization eligibility. Rivera-Rioseco 19 I&N Dec. 833 (BIA 1988) http://www.justice.gov/eoir/vll/intdec/vol19/3092.pdf (1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. (2) For purposes of relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), the date of acquisition of lawful unrelinquished domicile by an alien who had his status
  20. 20. Page 8 of 12 adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. Matter of Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988), followed. Artigas 23 I&N Dec. 99 (BIA 2001) Interim Decision #3450 An Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, when the respondent is charged as an arriving alien without a valid visa or entry document in removal proceedings. Martinez- Montalvo 24 I&N Dec. 778 (BIA 2009) April 20, 2009 http://www.justice.gov/eoir/vll/intdec/vol24/3639.pdf Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001), superseded. “... United States Citizenship and Immigration Services (“USCIS”) generally has exclusive jurisdiction to adjudicate adjustment applications of arriving aliens. The only exception to this rule arises when
  21. 21. Page 9 of 12 an alien who leaves the United States while an adjustment application is pending with the USCIS returns pursuant to a grant of advance parole and is placed in removal proceedings. 8 C.F.R. §§ 1245.2(a) (1) (ii) (A)-(D). In such circumstances, an Immigration Judge would have jurisdiction to adjudicate the alien’s renewed adjustment application in removal proceedings if the application has been denied by the USCIS.” At p. 782 AAO Non-Precedent Decisions posted on www.uscis.gov Home > Administrative Decisions >A2 - Certification of Cuban Adjustment Application for Permanent Residence Pursuant to Section 1 of the Cuban Adjustment Act of November 2, 1966 (P.L. 89-732) May062009_01A2caa.pdf May062009_02A2caa.pdf May062009_03A2caa.pdf Jun092009_01A2caa.pdf Jun102009_01A2caa.pdf Jun292009_01A2caa.pdf Jul072009_01A2caa.pdf Jul072009_02A2caa.pdf Jul072009_03A2caa.pdf Jul072009_04A2caa.pdf Jul072009_05A2caa.pdf Jul072009_06A2caa.pdf Jul082009_01A2caa.pdf Jul092009_01A2caa.pdf Jul202009_01A2caa.pdf Jul202009_02A2caa.pdf Aug032009_01A2caa.pdf Aug042009_01A2caa.pdf Aug042009_02A2caa.pdf Sep152009_01A2caa.pdf Denial Affirmed. Lacks physical presence. Denial Affirmed. Fake birth certificate. Denial Affirmed. Fake birth certificate. Denial Affirmed. Criminal inadmissibility. Appeal Rejected. Lack of jurisdiction. Denial Affirmed. Stowaway ineligible for AOS. Denial Withdrawn & Remanded. K-3 is OK for CAA. Denial Withdrawn & Remanded. K-4 is OK for CAA. Denial Withdrawn & Remanded. K-4 is OK for CAA. Denial Withdrawn & Remanded. K-4 is OK for CAA. Appeal Rejected. Lack of jurisdiction. Motion Granted but Denial Upheld. Appeal Rejected. Lack of jurisdiction. Appeal Rejected. Lack of jurisdiction. Appeal Rejected. Lack of jurisdiction. Sham marriage. Appeal Rejected. Lack of jurisdiction. Denial Affirmed. INTERPOL Fugitive Warrant. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. No Response to RFE/Abandoned. Appeal Rejected. Lack of jurisdiction.
  22. 22. Page 10 of 12 AAO Non-Precedent Decisions posted on www.uscis.gov Home > Administrative Decisions >A2 - Certification of Cuban Adjustment Application for Permanent Residence Pursuant to Section 1 of the Cuban Adjustment Act of November 2, 1966 (P.L. 89-732) Jan212010_01A2caa.pdf Jan212010_02A2caa.pdf Jan262010_01A2caa.pdf Jan262010_02A2caa.pdf Jan262010_03A2caa.pdf Jan262010_04A2caa.pdf Jan272010_01A2caa.pdf Feb012010_01A2caa.pdf Feb012010_02A2caa.pdf Feb012010_03A2caa.pdf Feb012010_04A2caa.pdf Feb012010_05A2caa.pdf Feb012010_06A2caa.pdf Feb042010_01A2caa.pdf Feb042010_02A2caa.pdf Feb042010_03A2caa.pdf Feb162010_01A2caa.pdf Feb192010_01A2caa.pdf Feb192010_02A2caa.pdf Feb192010_03A2caa.pdf Feb192010_04A2caa.pdf Feb202010_01A2caa.pdf Feb242010_01A2caa.pdf Feb242010_02A2caa.pdf Feb242010_03A2caa.pdf Mar122010_01A2caa.pdf Mar122010_02A2caa.pdf Mar122010_03A2caa.pdf Mar122010_04A2caa.pdf Mar122010_05A2caa.pdf Mar122010_06A2caa.pdf Mar122010_07A2caa.pdf Apr052010_01A2caa.pdf Apr052010_02A2caa.pdf Appeal Rejected. No Right of Appeal Exists. MTRR Dismissed. No New Evidence, No Error ID’d. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. Denial Withdrawn & Remanded for Completion. Denial Withdrawn & Remanded for Completion. Denial Withdrawn & Remanded for Completion. Denial Withdrawn & Remanded for Completion. Appeal Rejected. No Right of Appeal Exists. Denial Affirmed. Burden of Proof not met. Denial Withdrawn & Remanded for Completion. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Principal (Her Spouse) Denied. Denial Affirmed. Merely Filed Too Early. Appeal Rejected. No Right of Appeal Exists. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Divorced from Cuban Spouse.
  23. 23. Page 11 of 12 Apr062010_01A2caa.pdf Apr062010_02A2caa.pdf Apr082010_01A2caa.pdf Apr082010_02A2caa.pdf Apr082010_03A2caa.pdf Apr162010_01A2caa.pdf Apr222010_01A2caa.pdf May072010_01A2caa.pdf May072010_02A2caa.pdf May072010_03A2caa.pdf May112010_01A2caa.pdf May202010_01A2caa.pdf Jun032010_01A2caa.pdf Jul092010_01A2caa.pdf Jul092010_02A2caa.pdf Jul092010_03A2caa.pdf Jul092010_04A2caa.pdf Jul092010_05A2caa.pdf Sep082010_01A2caa.pdf Sep092010_01A2caa.pdf Sep092010_02A2caa.pdf Sep092010_03A2caa.pdf Sep092010_04A2caa.pdf Sep102010_01A2caa.pdf Sep102010_03A2caa.pdf Sep102010_04A2caa.pdf Sep132010_01A2caa.pdf Sep132010_02A2caa.pdf Sep132010_03A2caa.pdf Sep222010_01A2caa.pdf Oct222010_01A2caa.pdf Oct222010_02A2caa.pdf Denial Affirmed. Criminal inadmissibility. Denial Affirmed. Must file I-601 for CIMT. Withdrawn, Remanded, Substantive Legal Error. Withdrawn, Remanded, Substantive Legal Error. Withdrawn, Remanded, Substantive Legal Error. Withdrawn, Remanded for New Decision. Withdrawn, in part, Denial Affirmed, Cuban Spouse adjusted under NACARA not CAA, CAA Ineligible. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. See IJ! Appeal Rejected. No Right of Appeal Exists. See IJ! Denial Affirmed. Must file I-601. Appeal Rejected. No Right of Appeal Exists. See IJ! Denial Affirmed. Discretionary Denial (lacks GMC). Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Merely Filed Too Early. Appeal Rejected. No Right of Appeal Exists. Appeal Rejected. No Right of Appeal Exists. Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Burden of Proof Not Met. Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Merely Filed Too Early. Denial Affirmed. Lacks “Rehabilitation” from crimes. Withdrawn, Remanded for New Decision. Withdrawn, Remanded for New Decision. Denial Affirmed. Burden of Proof Not Met. Withdrawn, Remanded for Further Processing. Denial Affirmed. False Claim to USC, Not Waivable. Denial Affirmed. Criminal inadmissibility, No Waiver. Dead link. Dead link. Feb022011_01A2caa.pdf Feb222011_01A2caa.pdf Mar082011_01A2caa.pdf Certification Withdrawn, Remanded Due to Procedural Error. Denial Affirmed. Criminal inadmissibility, I-601 under INA § 212(h) was Denied. Denial Affirmed. Burden of Proof Not Met. Bona Fides of marriage are Insufficient & Ineligible EWI.
  24. 24. Page 12 of 12 Mar312011_01A2caa.pdf Apr122011_01A2caa.pdf May132011_01A2caa.pdf May232011_01A2caa.pdf May262011_01A2caa.pdf May262011_02A2caa.pdf Aug152011_01A2caa.pdf Aug152011_02A2caa.pdf 2nd MTR Granted, I-485 Remains Denied. False Claim to USC on Form I-9. No Waiver Available. Withdrawn, Remanded a Second Time for Further Development and a New Decision, to be Certified to AAO if Adverse. Denial Affirmed. Criminal inadmissibility, No Waiver. Denial Affirmed. Burden of Proof Not Met. Denial Affirmed. No Qualifying Relative for I-601. Withdrawn, Remanded, I-601 was filed and remains pending. Denial Affirmed. Criminal inadmissibility, No Waiver. Denial Affirmed. Criminal inadmissibility, No Waiver.

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