Matter of L-K-, 23 I&N Dec. 677 (BIA 2004)
Main Issue: Whether adjustment is proper, under 245(a) and (c), when
alien failed to maintain lawful status for “technical” reasons by virtue of
pendency of asylum application filed while she was in nonimmigrant
status.
Legal Context:
INA § 245(c): Adjustment under 245(a) is generally unavailable for an alien
who has failed (other than through no fault of his own or for technical
reasons) to maintain continuously a lawful status since entry into the
United States.
8 C.F.R. § 1245.1(d)(2): “other than through no fault of his own or for
technical reasons” means in relevant part:
A technical violation resulting from inaction of the Service (as for
example, where an applicant establishes that he or she properly filed a
timely request to maintain status and the Service has not yet acted on that
request).
Facts of L-K-:
On March 1993, alien enters US as visitor
On August 27, 1993, alien files for asylum
On September 25, 1993, visitor status expires
Subsequently, asylum application referred to IJ
Alien renewed asylum application before IJ, who denied it
on July 16, 1999
While BIA appeal pending, alien notified that she was
approved to receive DV visa
Case remanded to Court, and on September 27, 2002, IJ
granted adjustment
DHS appealed decision
What L-K- Court Said:
Alien’s unlawful nonimmigrant status was not “for
technical reasons,” and so her adjustment was
precluded under INA § 245(a) and (c)
Found that “technical reasons” applies only to
inaction on the part of DHS
When DHS acts other than favorably on pending
asylum application, “technical reasons” end
What L-K- Court Did Not Say:
No comment on whether request must be to
maintain same status alien has at time of
application
No comment on whether lapse in change from one
status (visitor) to another (asylum) is one
“resulting from” DHS action or inaction that
triggers “technical reasons” exception
No comment on cases where alien files for
adjustment before DHS renders decision on
asylum application
