Matter of Triana, 28 I&N Dec. 659 (BIA 2022)("Approvable When Filed")

Matter of Triana

When determining whether a respondent is grandfathered for purposes of adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2018), a decision of the United States Citizenship and Immigration Services (“USCIS”) to approve a visa petition filed on or before April 30, 2001, does not foreclose an Immigration Judge from determining in removal proceedings whether that petition was “approvable when filed” within the meaning of 8 C.F.R. § 1245.10(a)(1)(i) (2021).

"This case was last before this Board on June 25, 2020, when we dismissed the respondent’s appeal of the Immigration Judge’s April 18, 2018, decision denying his applications for adjustment of status under section 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i) (2018), and cancellation of removal for certain nonpermanent residents under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1) (2018). This case is presently before us pursuant to a January 22, 2021, order from the United States Court of Appeals for the Eleventh Circuit granting the Government’s unopposed motion to remand. The appeal will again be dismissed. ... The issue in this case is whether an approved visa petition for which the beneficiary was not substantively eligible at the time of filing is “approvable when filed” within the meaning of 8 C.F.R. § 1245.10, such that it qualifies as a grandfathered petition for purposes of adjustment of status under section 245(i) of the INA, 8 U.S.C. § 1255(i). ... [T]he respondent has not shown that the visa petition on which he seeks to base his 245(i) adjustment of status application was “approvable when filed” within the meaning of 8 C.F.R. § 1245.10(a)(3)."