Submitted: Oct. 24, 2013.
Katherine L. Evans, Benjamin Casper, Minneapolis, MN, on the brief, for Petitioner.
Nancy Canter, Russell J.E. Verby, Stuart F. Delery, Washington, DC, on the brief, for Respondent.
Before BYE, SMITH, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Bassem Hunsi Ahmed Mansour appeals the final order of the Board of Immigration Appeals finding him ineligible for " adjustment of status" under 8 U.S.C. § 1255(i). Having jurisdiction under 8 U.S.C. § 1252, this court affirms.
Mansour, a Jordanian citizen, entered the United States on a student visa. He married a legal permanent resident. Invoking section 245 of the Immigration and Nationality Act— allowing certain aliens present in the United States to apply for adjustment of status to lawful permanent residency— Mansour's wife filed an I-130 petition, verifying their qualifying family relationship. 8 U.S.C. § 1255. Mansour concurrently filed an I-485 petition for permanent residency. The Immigration and Naturalization Service granted the 1986 petitions, adjusting his status to conditional permanent resident. The INS terminated this status in 1989, when Mansour and his wife failed to petition for removal of the residency conditions (he was living out of the country). See 8 U.S.C. § 1186a(c)(2).
In 1992, Mansour's mother, then a legal permanent resident, filed an I-130 petition on his behalf. The INS denied the petition because Mansour was married. Mansour and his wife divorced later that year.
In 1999, Mansour's mother filed another I-130 petition on his behalf. The INS approved the petition in 2000, authorizing him to return to the United States and remain until 2005. Mansour returned on a non-immigrant visa, but remained past the 2005 deadline (without renewing it or adjusting his status).
In 2007, Mansour filed an I-485 petition, again seeking to adjust his status to legal permanent resident. Because he had not maintained a non-immigrant visa since 2005, he was ineligible for adjustment under INA § 245(a)— which permits adjustment of status for aliens who enter the United States under inspection or parole and, as applicable here, maintain lawful non-immigrant status. 8 U.S.C. § 1255(a), (c). Instead, Mansour sought adjustment under § 245(i)— which permits adjustment of status for aliens ineligible under § 245(a) or disqualified under § 245(c). 8 U.S.C. § 1255(i). Although § 245(i) expired in 2001, a grandfather provision preserved the right to adjust status under § 245(i) for certain aliens: the alien must have been the beneficiary of a qualifying immigrant visa petition (e.g., I-130 petition) filed on or before April 30, 2001; and, the petition must have been " approvable when filed" (i.e., " properly filed, meritorious in fact, and non-frivolous" ). 8 C.F.R. § 245.10(a)(1)-(3). Whether a petition meets these criteria is " based on the circumstances that existed at the time the qualifying petition or application was filed." Id. § 245.10(a)(3). For petitions filed after January 14, 1998, the beneficiary must also have been present in the United States on December 21, 2000.
8 U.S.C. § 1255(i)(1)(C); 8 C.F.R. § 245.10(a)(1)(ii).
The U.S. Citizenship and Immigration Services (INS's successor) denied Mansour's petition, finding him ineligible for grandfathering based on any of his three I-130 petitions. As relevant to this appeal, the USCIS determined Mansour could not rely on his 1986 petition because " an application for adjustment of status cannot be based on an approved visa petition that has ...