Birdsong v. Holder, Jr., No. 10-2310 (8th Cir. 2011)
Annotate this CasePetitioner, a citizen of the Philippines, filed a petition for review of the BIA's decision affirming the IJ's final order of removal, concluding that petitioner was barred from seeking adjustment of status under 8 U.S.C. 1255(d). At issue was the relationship between 8 U.S.C. 1255(d) and (i) where section 1255 prescribed the terms upon which various classes of aliens could adjust their status to that of a lawful permanent resident ("LPR"). The court held that the provisions in subsection 1255(d) barred petitioner as a K-1 visa holder from adjusting her status on any basis other than her marriage to the U.S. citizen who petitioned on her behalf and that these provisions were consistent with the carefully crafted scheme that Congress created for the purpose of avoiding marriage fraud. The court also held that petitioner's due process rights were not violated where she was not entitled to a further hearing after she conceded removability and was ineligible for adjustment of status. Accordingly, the court denied the petition for review.
Court Description: Petition for Review - Immigration. 8 U.S.C. Sec. 1255(d) bars petitioner from adjusting her status based on her marriage to a person other than the person who originally petitioned on her behalf; the BIA's interpretation of the statutory scheme was reasonable and consistent with the carefully crafted scheme Congress has created for the purpose of avoiding marriage fraud.
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