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Taveras-Duran v. Holder

Facts

Taveras-Duran entered the U.S. as a tourist in 2004 and married a U.S. citizen, obtaining conditional permanent resident status. His status was later terminated by USCIS, which found that the marriage was a sham. After a divorce, he applied for a waiver of the joint petition requirement but was denied due to lack of credible evidence. The Immigration Judge granted him thirty days for voluntary departure, which he failed to comply with, leading to his ineligibility for adjustment of status.

Taveras-Duran entered the United States as a tourist on February 27, 2004. On July 16, 2004, he married a United States citizen and thereby obtained permanent resident status on a conditional basis. On July 27, 2007, Taveras-Duran and his wife filed a Joint Petition to Remove Conditions on Residence. The United States Citizenship and Immigration Services (USCIS) concluded that the marriage 'was a sham, entered into solely for the purpose of circumventing immigration laws,' and terminated Taveras-Duran's status as a conditional permanent resident. USCIS served Taveras-Duran with notice to appear for removal proceedings on December 3, 2008.

Issue

Was Taveras-Duran eligible for an adjustment in status and did the BIA abuse its discretion in denying his motion to reopen based on ineffective assistance of counsel?

Was Taveras-Duran eligible for an adjustment in status and did the BIA abuse its discretion in denying his motion to reopen based on ineffective assistance of counsel?

Rule

Under 8 U.S.C. 1229c(d)(1)(B), an alien who fails to voluntarily depart within the specified time period is ineligible for various forms of relief, including adjustment of status, for a period of ten years.

Under section 240B(d) of the INA, an alien who fails to voluntarily depart within the time period specified is ineligible for various forms of relief, including adjustment of status, for a period of ten years. 8 U.S.C. 1229c(d)(1)(B).

Analysis

The court found that Taveras-Duran did not dispute his failure to voluntarily depart within the thirty-day windows established by both the Immigration Judge and the BIA. His ineligibility for adjustment in status was based on his decision to remain in the U.S. after the voluntary departure deadline and his failure to file a motion to reopen before that date. The BIA's denial of his ineffective assistance of counsel claim was also upheld due to his failure to meet the procedural requirements.

The BIA properly concluded that Taveras-Duran was ineligible for an adjustment in status at the time of the motion to reopen. Under section 240B(d) of the INA, an alien who fails to voluntarily depart within the time period specified is ineligible for various forms of relief, including adjustment of status, for a period of ten years. 8 U.S.C. 1229c(d)(1)(B). Taveras-Duran does not dispute that he failed to voluntarily depart within the thirty-day window established by the IJ on April 16, 2012, and the thirty-day window established by the BIA on May 21, 2013. Based on the plain language of the statute, Taveras-Duran is statutorily ineligible for the relief that he sought in the motion to reopen.

Conclusion

The court denied Taveras-Duran's petition for review, affirming the BIA's decision that he was ineligible for adjustment of status and that the denial of his motion to reopen was not arbitrary or capricious.

For the reasons stated above, Taveras-Duran's petition for review is denied.

Who won?

The Board of Immigration Appeals (BIA) prevailed because Taveras-Duran failed to comply with the voluntary departure order and did not provide sufficient evidence for his claims.

The BIA did not abuse its discretion in denying Taveras-Duran's ineffective assistance of counsel claim, in any event. 'The BIA acts within its discretion in denying motions to reopen that fail to meet the Lozada requirements as long as it does so in a non-arbitrary manner.'

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