U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pilce, Su11e 2000

Falls Church, Virg1ma 22041

Scribe, Cynthia Jill OHS/ICE Office of Chief Counsel - SFR

Luscutoff, Lendormy and Associates P.O. Box 26449
601 Montgomery Street, Suite 1088 San Francisco, CA 94126-6449
San Francisco, CA 94111

Name: DOMINGUEZ, MAXIMINO A 089-728-297

Riders

Date of this notice: 2113/2018

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kendall Clark, Molly

Smit11K1
Userteam: Docket

Cite as: Maximo Dominguez, A089 728 297 (BIA Feb. 13, 2018)
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U.S. Bepartment of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A089 728 297 - San Francisco, CA Date: FEB 13 2018

In re: Maximino DOMI NGUEZ

I N REMOVALP ROCEEDINGS

MOTION

ON BEHALF OF RESPON DENT S: Cynthia Scribe, Esquire

ON BEHALF OF OHS: Mary J. Hannen

Assistant Chief Counsel

APPLI CATION: Reopening

The respondents, who are father and son and natives and citizens of Mexico, 1 have filed a
timely motion to reopen to allow them the opportunity to apply for adjustment of status under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C.§ 1255(i). The motion will be
granted and the record will be remanded for further proceedings consistent with this order.

A motion to reopen shall state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other material evidence. Section
240(c)(7)(B) of the Act, 8 U.S.C.§1229a(c)(7)(B). The lead respondent is the beneficiary of an
approved visa petition ( Form 1-130) that was filed on his behalf by his United States citizen
daughter. The co-respondent is the beneficiary of a pending visa petition ( Form 1-130) that was
filed on his behalf by his United States citizen spouse.

The respondents, who entered this country without being inspected and admitted or paroled,
are statutorily ineligible for adjustment under section 245(a) of the Act, 8 U.S.C.§ 1255(a), unless
they are eligible for adjustment under section 245(i) of the Act. The lead respondent has shown
prima facie eligibility for adjustment of status under section 245(i) of the Act. See generally
Matter of Coelho, 20 l&N Dec.464, 472 (BIA 1992) (holding that a motion to reopen may be
denied based upon the failure to establish a prima facie case for the relief sought).

Pursuant to section 245(i) of the Act, the applicant must be the beneficiary of a labor
certification or visa petition that was properly filed on or before April 30, 2001, and that was
approvable when filed. See 8 C.F.R.§ 1245.IO(a). Approvable when filed means, in part, that "as
of the date of the filing ...the qualifying petition was ...meritorious in fact ..." 8 C.F.R.
§ 1245.IO(a)(3). While the Department of H omeland Security ("OHS"), is correct that the lead
respondent's employment-based visa petition ( Form 1-140) was denied and the subsequent appeal
from that decision was dismissed, the lead respondent has demonstrated that he is the beneficiary

1 We refer to the father as the lead respondent.

Cite as: Maximo Dominguez, A089 728 297 (BIA Feb. 13, 2018)
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A089 728 297 et al.

of a labor certification which was properly filed on October 23, 1997, and approved on October 1,
2001. See Matter of Butt, 26 I&N Dec. 108 (BIA 2013) (a "properly filed" labor certification
application must be submitted and accepted for processing by the appropriate, local employment
service office by April 30, 2001).

Section 245(i) of the Act requires that the applicant demonstrate that he is the beneficiary of a
labor certification or a visa petition that was filed on or before April 30, 2001, not that he be the
beneficiary of both a labor certification and visa petition properly filed before that date.
Accordingly, the lead respondent has demonstrated his prima facie eligibility for 245(i) adjustment
of status. The co-respondent has also established his prima facie eligibility for section 245(i)
adjustment as a derivative grandfathered alien. See Matter of Estrada, 26 I&N Dec. 180 (BIA
2013) (a child accompanying a principal grandfathered alien can qualify as a derivative
grandfathered alien for purposes of section 245(i) by virtue of a child relationship that arose before
April 30, 2001 ). The record will be remanded to afford the respondents the opportunity to apply
for adjustment of status. The appropriate orders will be entered.

ORDER: The respondents' motion to reopen is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

2
Cite as: Maximo Dominguez, A089 728 297 (BIA Feb. 13, 2018)