United States v. 2005-03-29 | 03-71354 | KALAL VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VERENA DEL ROSARIO KALAL,
Petitioner, No. 03-71354
v. Agency No.
 A73-418-125ALBERTO GONZALES,* Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 11, 2005—Seattle, Washington
Filed March 30, 2005
Before: Ferdinand F. Fernandez, A. Wallace Tashima, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Fernandez
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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COUNSEL
Bart Klein, Law Offices of Bart Klein, Seattle, Washington,
for the petitioner.
Greg D. Mack, United States Department of Justice, Civil
Division, Washington, D.C., for the respondent.
OPINION
FERNANDEZ, Circuit Judge:
Verena Del Rosario Kalal petitions for review of the Board
of Immigration Appeals’ summary affirmance of the Immi-
gration Judge’s (IJ) determinations which rescinded her con-
ditional legal permanent resident status, denied her
withholding of removal, and ordered her removed. That took
place after she failed to comply with the terms of her K-1
visa. We deny the petition.
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BACKGROUND
Kalal is a native and citizen of Colombia. On June 25,
1996, upon the petition of her United States citizen fiancé,
Mark Salvador Scardino, a K-1 nonimmigrant visa was issued
in Kalal’s favor. She entered this country on or about July 4,
1996. A K-1 visa is issued for the sole purpose of facilitating
a valid marriage between an alien and a United States citizen,
and that marriage must take place within ninety days of entry.
8 U.S.C. §§ 1101(a)(15)(K)(i), 1184(d). Kalal did not marry
Scardino within ninety days, or at all. Instead, she went her
own way and later met Kenneth Leroy Kalal. She married him
on December 2, 1996.
Thereafter, the Immigration and Naturalization Service
granted her conditional legal permanent resident status upon
the petition of Kenneth Leroy Kalal, but did so in error
because she was not entitled to that status at that time. When
the INS discovered its error, it gave notice that it purposed to
rescind her conditional legal permanent resident status, and
did so on June 28, 2001, by action of the District Director.
Removal proceedings were then commenced.
In due course, the IJ declared that the conditional legal per-
manent resident status should, indeed, be rescinded, that she
was not entitled to adjustment of status, and that she would be
removed to Colombia should she fail to depart voluntarily
within the allotted time. The BIA summarily affirmed. See 8
C.F.R. § 1003.1(e)(4). This petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
Because the IJ’s decision dealt with issues of law only and
the BIA affirmed without opinion, we review the IJ’s decision
de novo. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851
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(9th Cir. 2003); Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.
1999).
DISCUSSION
A. The Rescission Decision
Kalal asserts that the IJ should not have made a removal
decision when he did because a separate rescission proceeding
had to be concluded before a removal hearing could even be
commenced. We do not agree, but must outline the statutory
scheme before we proceed further.
[1] A K-1 visa holder is not an immigrant, but rather, as rel-
evant here, is a person who “is the fiancee or fiance of a citi-
zen of the United States and who seeks to enter the United
States solely to conclude a valid marriage with the petitioner
within ninety days after admission.” 8 U.S.C.
§ 1101(a)(15)(K)(i). In order to obtain a K-1 visa, a woman’s
United States citizen fiancé must have petitioned for it, and it
will not issue unless there is satisfactory evidence that the par-
ties “have a bona fide intention to marry, and are legally able
and actually willing to conclude a valid marriage in the
United States within a period of ninety days after the alien’s
arrival.” 8 U.S.C. § 1184(d). Moreover, “[i]n the event the
marriage with the petitioner does not occur within three
months after the admission of the said alien . . . , [she] shall
be required to depart from the United States and upon failure
to do so shall be removed.” Id. There is no provision for waiv-
ing those requirements. Even if a timely marriage takes place,
there are further restrictive provisions.
[2] At that point, the alien may apply for lawful permanent
resident (LPR) status. See 8 C.F.R. § 214.2(k)(6)(ii). How-
ever, full status is not then possible because the alien “shall
be considered, at the time of obtaining the status of an alien
lawfully admitted for permanent residence, to have obtained
such status on a conditional basis.” 8 U.S.C. § 1186a(a)(1).
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Thus, the alien becomes a conditional lawful permanent resi-
dent (CLPR). Then, there is a two-year wait and another
application, usually joined in by both the alien and the United
States citizen spouse, must be made to remove the condition.
Id. § 1186a(c)(1)(A). Absent that, the alien’s CLPR status is
terminated, and removal follows. Id. § 1186a(c)(2).
[3] Kalal did not meet any of those conditions. In fact, she
never did marry Scardino; instead, more than 90 days after
she entered on her K-1 visa, she married Kenneth Kalal. Nev-
ertheless, a petition was submitted on her behalf and, through
an administrative error of some sort, the INS issued her an
adjustment to CLPR status. When she later petitioned to
remove the condition, the error was discovered, and in
November of 2000, the INS issued a notice of intent to
rescind that status. Kalal sought a hearing, but the District
Director terminated her CLPR status on June 28, 2001.
Removal proceedings, which resulted in the removal order in
question here, then ensued.
There is no real dispute that, as the IJ found, Kalal was
entitled to a hearing before an IJ on the issue of rescission of
her CLPR status. See 8 C.F.R. §§ 246.1, 246.3. She argues
that consideration of the rescission issue must take place in an
earlier separate proceeding, and cannot be decided by the IJ
at a removal hearing. That is not correct.
[4] Because a hearing before the IJ did take place in this
case, she was not prejudiced by the fact that the recession and
removal proceedings were, in effect, combined. Thus termina-
tion of this removal proceeding was not required. See Matter
of Hernandez, 21 I. & N. Dec. 224, 227-28 (BIA 1996); see
also 8 U.S.C. § 1256(a). That makes sense here because there
appears to be no reason other than mere delay to keep the
hearings in pristine isolation from one another, particularly
when it is realized that rescission of the CLPR status means
that a K-1 visa holder must depart.
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Therefore, we will turn to the real question in this case: can
Kalal somehow evade the strictures of the K-1 program?
B. Removal; Adjustment of Status
Once her improperly granted CLPR status was rescinded,
Kalal was in the position of a K-1 visa holder who neither
married her fiancé within 90 days of entry, nor departed. In
short, she was removable. 8 U.S.C. § 1184(d). But, says she,
her removal can be avoided by use of the provisions of 8
U.S.C. § 1255 to adjust her status to that of an LPR once
again. She is wrong.
[5] Congress perceived that a claim of that sort might be
made, so it enacted a provision which declares:
The Attorney General may not adjust, under subsec-
tion (a) of this section, the status of an alien lawfully
admitted to the United States for permanent resi-
dence on a conditional basis under section 1186a of
this title. The Attorney General may not adjust,
under subsection (a) of this section, the status of a
nonimmigrant alien described in section
1101(a)(15)(K) of this title except to that of an alien
lawfully admitted to the United States on a condi-
tional basis under section 1186a of this title as a
result of the marriage of the nonimmigrant . . . to the
citizen who filed the petition to accord that alien’s
nonimmigrant status under section 1101(a)(15)(K) of
this title.
Id. § 1255(d). In other words, the Attorney General is not per-
mitted to adjust the status of a K-1 visa holder except to the
status of a CLPR pursuant to 8 U.S.C. § 1186a. Moreover, the
Attorney General is not permitted to adjust the status of a
CLPR pursuant to the provisions of 8 U.S.C. § 1255. Kalal’s
position is, therefore, hopeless. Still, she grasps at another
subsection of § 1255.
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Kalal argues that she can obtain relief pursuant to 8 U.S.C.
§ 1255(i). That desperate, oneiric hope for relief must be
dashed because § 1255(i)(l) only provides relief
“[n]otwithstanding the provisions of subsections (a) and (c).”
Notably absent is a reference to subsection (d), which is the
provision that blocks Kalal’s relief in this case.
Nor is Kalal saved by Matter of Stockwell, 20 I. & N. Dec.
309, 311-12 (BIA 1991). In that case, the alien had not
entered the United States on a special K-1 visa, and, as
already noted, Congress has enacted a specific restrictive pro-
cess for holders of that kind of visa. Moreover, at one point
Stockwell did, at least, achieve proper CLPR status. Id. at
309. If Kalal were correct, that case would, quite problemati-
cally, allow a K-1 visa entrant to entirely avoid the carefully
crafted scheme that Congress created for the purpose of
avoiding marriage fraud. As such, the case would itself be of
dubious validity.
The last straw at which Kalal grasps1 is Matter of Zampetis,
14 I. & N. Dec. 125 (Reg’l Comm’r 1972). However, that
case does not solve her problem because in its cryptic discus-
sion it posits the possibility of an adjustment under 8 U.S.C.
§ 1255,2 which now expressly precludes adjustment for K-1
visa holders who do not follow the procedure set forth in 8
U.S.C. § 1186a.3
Perhaps it is also worth noting that Zampetis at least
1We have not overlooked Kalal’s reference to an INS operating instruc-
tion, but those instructions do not have any binding effect. See, e.g., Mat-
ter of Merced, 14 I. & N. Dec. 644, 646 (BIA 1974).
2Zampetis, 14 I. & N. Dec. at 125-26.
3See 8 U.S.C. § 1255(d); Charles Wheeler, Until INS Do Us Part: A
Guide to IMFA, 90-03 Immigr. Briefings 1 nn.253-57 & accompanying
text (Mar. 1990). By the way, Zampetis, 14 I. & N. Dec. at 126, also relied
upon 8 U.S.C. § 1259, which only applies to aliens who entered prior to
January 1, 1972.
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involved an alien who married somebody within the 90-day
period, just as Stockwell involved an alien who had at least
achieved proper CLPR status. Kalal, on the other hand, did
not comply with any of the legal strictures of 8 U.S.C.
§§ 1184 & 1186a.
CONCLUSION
Kalal entered the United States on a K-1 visa. That sub-
jected her to a number of strictures that Congress carefully
designed for the purpose of putting an end to the activities of
those who would otherwise take advantage of its solicitude
for affianced couples. She abided by none of the restrictions,
and now suggests that she can avoid them entirely — no need
to marry her fiancé within 90 days; no need to marry him at
all, actually; and no need to obtain a legal CLPR status as
those who follow the law must. We do not think that Congress
would countenance that flouting of its enactments, nor do we
think that it would wish to have the Attorney General or us
do so. In short, Kalal was properly ordered removed.
Petition DENIED.
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