"Mahvash Alisha Akram came to this country in 2006. She hoped to join her recently remarried mother and become a lawful permanent resident. Her hopes were dashed when she ran headlong into a regulatory wall. She now argues that the regulation that thwarted her cannot stand. Because we find that the regulation at issue directly conflicts with the will of Congress, we agree with Akram and grant her petition for review. ... Akram appealed to the Board of Immigration Appeals (“BIA”). Like the IJ, the BIA concluded that Akram could not adjust status as Siddique’s “child” and that it lacked the authority to declare 8 C.F.R. § 245.1(i) unconstitutional or ultra vires. See In re Akram, 25 I. & N. Dec. 874, 880 (BIA 2012). The BIA also denied Akram’s motion to remand the case to allow her to adjust status as a relative of her mother, who by that time had become a lawful permanent resident. Id. at 882. The BIA reasoned that Akram could not adjust status through her mother because 8 C.F.R. § 245.1(i) barred Akram from adjusting status on any basis other by a relationship to Siddique. Akram, 25 I. & N. Dec. at 882. Akram now petitions for review, arguing, once again, that 8 C.F.R. § 245.1(i) is unconstitutional and contrary to the will of Congress. ... We ... conclude that 8 C.F.R. § 245.1(i)’s requirement that K-4s adjust status only by way of the sponsoring U.S. citizen is contrary to 8 U.S.C. § 1255(d) and 8 U.S.C. § 1101(a)(15)(K)(iii). ... [W]e leave it to the Attorney General to decide whether, and how, Akram will be able to adjust status. ... We GRANT Akram’s petition for review, REVERSE the decision of the BIA, and REMAND for proceedings consistent with this opinion." - Akram v. Holder, July 9, 2013.
[Hats way off to Yael D. Aufgang at Jones Day!]
Great work by attorney Aufgang and the National Immigrant Justice Center! The remand raises questions as to how things will develop with the administrative agencies. Will the regulation the 7th Circuit declared invalid be superseded in the Federal Register with something that comforms with the 1101(a)(15)(K) statute? The BIA could theoretically create an enclave with the states of the Seventh Circuit, and apply the rule in Matter of Akram only to states outside the Seventh, but that would be senseless given that these are consular issues which shouldn't differ based upon the geographic jurisdictions of the circuits. I guess we'll just have to wait and see how the BIA handles this on remand, but in the meantime this is a great victory!