Cite as 25 I&N Dec. 431 (BIA 2011) Interim Decision #3707
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On March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, the functions of the Immigration and Naturalization Service were transferred
from the Department of Justice (“DOJ”) to the Department of Homeland Security (“DHS”).
The United States Citizenship and Immigration Services, an agency within the DHS, is
authorized to provide immigration and naturalization benefits to aliens, including the
adjudication of adjustment of status applications. As part of this restructuring, the
regulations were separated into DHS and DOJ counterparts. Aliens and Nationality;
Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003
).
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under sections 245(a) and (d) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1255(a) and (d) (2006), before the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Sierra Leone, met his future
United States citizen wife in 1997 when they were both studying in
Addis Ababa, Ethiopia. She filed a Petition for Alien Fiancé(e) (Form I-129F)
on the respondent’s behalf, which was approved by the former Immigration
and Naturalization Service (“INS”)
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on October 27, 1999. The respondent was
issued a K-1 nonimmigrant fiancé visa pursuant to section 101(a)(15)(K)(i) of
the Act, 8 U.S.C. § 1101(a)(15)(K)(i) (2000), on February 4, 2000. On
April 18, 2000, the respondent was admitted to the United States as a fiancé
for a 90-day period. He married the fiancée petitioner on April 28, 2000. The
couple had a son, born March 29, 2001. On June 20, 2001, the respondent
filed an adjustment of status application with the INS.
On November 8, 2002, the INS mistakenly denied the respondent’s
adjustment application because it had not adjudicated the application within
2 years of his April 28, 2000, marriage. The couple divorced on June 5, 2003.
In a Notice to Appear dated October 29, 2003, the Department of Homeland
Security (“DHS”) alleged that the respondent was in the United States in
violation of law pursuant to section 237(a)(1)(B) of the Act,
8 U.S.C. § 1227(a)(1)(B) (2000). On November 24, 2004, the respondent
married his current United States citizen spouse. She filed a family-based
immigrant visa petition, Form I-130 (Petition for Alien Relative), on the
respondent’s behalf, which the United States Citizenship and Immigration
Services (“USCIS”) approved on July 26, 2005.
In removal proceedings, the respondent conceded removability and sought
to renew his adjustment application based on the approved fiancé petition filed
by his first wife. He also filed an adjustment application based on the
approved I-130 filed by his current wife. In a decision dated April 24, 2007,
the Immigration Judge denied both adjustment applications. He denied
adjustment based on the approved I-130 filed by the second wife because the