Sothon Song v. Merrick Garland, No. 18-2496 (4th Cir. 2022)
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Petitioner petitioned or review of the Board of Immigration Appeals’ final removal order under 8 U.S.C. Section 1252. The Board held that Petitioner, as the recipient of a K-1 nonimmigrant visa, couldn’t adjust status to that of a conditional permanent resident without an affidavit of support from her former husband, who originally petitioned for her K-1 visa.
The Fourth Circuit denied the petition, finding that the Board’s decision to be reasonable under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court held that the Board didn’t act arbitrarily or capriciously by hewing to a regulatory provision that applies on its face, even if another (facially inapplicable) provision might have better protected Petitioner’s reliance interests.
Petitioner’s petition also seeks review of the Board’s refusal to reopen her removal proceedings so she could introduce a document entitled “Questions and Answers: USCIS— American Immigration Lawyers Association (AILA) Meeting,” dated October 9, 2012. Petitioner suggested that this document supported her argument that subsection (f)(1) (and not (f)(2)) should apply to K-1 beneficiaries’ adjustment applications, such that a petitioner couldn’t withdraw a Form I-864 once the K-1 beneficiary has entered the United States. The document doesn’t render the Board’s decision unreasonable. At oral argument, both parties agreed that the document is ambiguous as to whether it truly reflected USCIS’s position in 2012. But even if it did, the Board’s later precedential decision in Petitioner’s case binds USCIS employees.
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