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Delgado-Sobalvarro v. Attorney General of the United States of America

November 2, 2010

ANGELICA MARIA DELGADO-SOBALVARRO, A/K/A, ANGELICA RATHOF, A/K/A, MARIA RATHOF; LILLYETH DELGADO-CARVAJAL, PETITIONERS
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENT



On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A78-961-793; A78-961-794).

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on July 13, 2009

Before: RENDELL, FUENTES and ROTH, Circuit Judges.

OPINION

I. Introduction

The issue in this case is whether an alien released on Aconditional parole@ under section 236 of the Immigration and Nationality Act (INA) has been Aparoled into the United States@ so that she is statutorily eligible to adjust her status under INA ' 245 to that of a lawfully admitted permanent resident. Angelica Maria Delgado-Sobalvarro and her daughter, Lillyeth DelgadoCarvajal, petition for review of the order of the Board of Immigration Appeals (BIA) dismissing their application for adjustment of status. The BIA concluded that the petitioners were not statutorily eligible for adjustment of status because they were not paroled into the United States. For the reasons that follow, we will affirm the decision of the BIA and deny the petition for review.

II. Background

Delgado-Sobalvarro and her daughter are natives of Nicaragua. They arrived in the United States on November 19, 2001, near Hidalgo, Texas. At that time, they were detained by immigration authorities and issued Notices to Appear, which charged them with removability pursuant to INA ' 212(a)(6)(A)(i) for being present in the United States without having been admitted or paroled. Pending a decision on their removability, the petitioners were released on conditional parole on their own recognizance in accordance with INA ' 236.

Removal proceedings commenced in 2002. On June 6, 2003, Delgado-Sobalvarro married United States citizen James Rathof. Rathof then filed I-130 immediate relative petitions for Delgado-Sobalvarro and her daughter. Rathof and DelgadoSobalvarro subsequently had two children together.

On August 14, 2006, Immigration Judge Fredric G. Leeds issued an order concluding that the petitioners were statutorily ineligible to adjust their status because they pointed to Ano binding authority establishing that conditional parole under INA ' 236(a)(2)(B) is considered parole for adjustment of status purposes.@ The IJ further ruled that, even accepting the petitioners= conditional parole argument, their failure to present valid entry documents still rendered them ineligible to adjust status. Additionally, because Delgado-Sobalvarro married Rathof during the pendency of her removal proceeding, the IJ concluded that she was ineligible to adjust status under INA ' 245(e)(1). Nor could Delgado-Sobalvarro qualify for the exception provided by ' 245(e)(3) for an alien who establishes by clear and convincing evidence that she married in good faith because she did not present any marriage documents. The IJ also denied the petitioners= request for a continuance in order that the I-130 immediate relative petition could be adjudicated. Accordingly, the IJ ordered the petitioners removed to Nicaragua.

Rather than appeal the IJ=s decision, the petitioners filed a motion to reconsider. The petitioners argued that the IJ erred in holding that they were ineligible to adjust status and that Delgado-Sobalvarro failed to establish the bona fides of her marriage by clear and convincing evidence. On September 26, 2006, the IJ denied the petitioners= motion to reconsider, holding that petitioners insufficiently addressed his prior reasons for concluding that they were ineligible to adjust status. The IJ also confirmed his previous ruling that Delgado-Sobalvarro failed to establish the validity of her marriage under ' 245(e)(3) and that she could not do so Aby merely appearing in Court with a child and pregnant.@ Finally, the IJ again denied the request for a continuance pending resolution of the I-130 petition filed by Rathof.

The petitioners appealed the IJ=s decision to the BIA, arguing that (1) production of a hearing transcript was necessary to review the proceedings below, (2) the IJ erred in finding that conditional parole did not render them eligible to adjust status, (3) Delgado-Sobalvarro established the bona fides of her marriage, (4) the proceedings should have been continued to allow the I-130 immediate relative petition to be processed, and (5) the IJ prematurely denied their claims. On February 8, 2008, the BIA affirmed the IJ=s orders and dismissed the appeal. First, the BIA found that the petitioners were not denied due process by not receiving hearing transcripts because, under the BIA=s rules, such transcripts are not typically provided in appeals of motions to reconsider and the petitioners could not demonstrate prejudice. Second, the BIA agreed with the IJ that the petitioners were ineligible to adjust status because release on conditional parole Ais not the type of >parole= that would impact the [petitioners=] adjustment eligibility,@ a finding that rendered moot the validity of the marriage and the continuance pending a decision on the I-130 petition. Finally, the BIA determined that the IJ=s denial of the petitioners= claims was not untimely. The BIA therefore affirmed the IJ=s orders.

On appeal, the petitioners concede that they are removable as charged. They contend, however, that their November 19, 2001, release on conditional parole pursuant to ' 236 renders them ...


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