In Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), the United States Court of Appeals for the Ninth Circuit held that an immigrant who was inadmissible (not able to get a green card) because of these prior immigration violations:
Any alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to reenter the United States without being admitted
could apply for a green card without having to leave the U.S. if the alien was grandfathered under section 245(i) or whose family member or employer filed an immigrant visa before April 30, 2001. A grandfathered immigrant can also include an immigrant whose parent or spouse has an immigrant visa petition filed for them but not one directly filed for the immigrant.
An alien is allowed to take advantage of this decision as long as s/he applies for retroactive consent to reapply for lawful admission.
In Perez-Gonzalez v. Ashcroft, the court found that the statutory terms of §245(i) recognized that individuals are living in the country without legal status and that the provision was reenacted to allow relatives of permanent residents to avoid separation from their loved ones.
In a later decision by the Ninth Circuit, Acosta v. Gonzalez (2/23/06), an immigrant first entered the country without inspection in 1993. He twice departed, in 1996 and 1999, and reentered without inspection both times. In April 2001, he married a U.S. citizen and applied affirmatively for adjustment of status (green card process in the U.S.) pursuant to INA §245(i).
The court held that Perez-Gonzalez controlled and the immigrant was eligible to get his green card in the U.S. despite the illegal entries and unlawful presence.
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com
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