Virginia Lawyers Weekly VA Lawyers Weekly
Where a nonresident applied for conditional permanent residence in the United States, and submitted an affidavit of support from her spouse as required by the regulations, but the spouse then withdrew the affidavit, the Board of Immigration Appeals did not err when it denied the application. While the applicant argued it was unfair for petitioning sponsor to have unilateral “veto power” over the application, the Board’s regulation was consistent with the regulatory scheme.
Background
Sothon Song was a citizen and resident of Cambodia when her fiancé, U.S. citizen Justin Sang, petitioned for Song to receive a K-1 visa so that she could enter the United States and marry him. Song received the visa, traveled to the United States and married Sang.
Song then applied to adjust status to become a conditional permanent resident. Sang, in turn, submitted an affidavit of support for Song’s adjustment application. But the marriage fizzled and Sang withdrew his affidavit of support while Song’s adjustment application was pending.
Song filed a second application for adjustment and presented a new affidavit of support, this time from a friend who attested that he would ensure Song’s financial stability. But the immigration judge denied that application, holding that Song could adjust status only if Sang provided an affidavit of support. Song appealed to the Board, which held that Sang’s withdrawal foreclosed Song from establishing her admissibility.
Analysis
The Immigration and Nationality Act is silent on whether Sang could withdraw his affidavit of support, and if so, whether that withdrawal foreclosed Song from adjusting status on public-charge grounds. Faced with a statutory gap, the agency filled it with a regulation to clarify that K-1 beneficiaries like Song must obtain an affidavit of support from the person who filed the K-1 petition. The Board’s reading of the regulations fits the statutory scheme. While Song contends it’s unfair for the petitioning sponsor to have unilateral “veto power” over the K-1 beneficiary’s adjustment application, dependence on the K-1 petitioner permeates nearly every step of the K-1 process established by Congress.
For instance, a noncitizen fiancée can’t begin the K-1 process herself; it’s the U.S. citizen who must first petition for the fiancée’s admission. And a K-1 beneficiary must leave the country unless she marries the U.S.-citizen petitioner within three months of entry. Even after the marriage, a K-1 beneficiary is at first entitled to adjust only to conditional permanent-resident status, which can be revoked upon a finding that the marriage ended or was a sham.
So the Board’s conclusion that a sponsor’s withdrawal forecloses a K-1 beneficiary’s adjustment application tracks other statutory features of the K-1 beneficiary’s unique position. And even if this apparent power imbalance might seem unfair to noncitizens in Song’s position as a policy matter, this court is constrained by the statutes as Congress enacted them.
Song argues that the Board should have found that Sang couldn’t withdraw his affidavit of support because, in the immigrant-visa context, a sponsor generally can’t withdraw an affidavit of support once the visa issues. Song recognizes that subsection (f)(1) addresses immigrant visas and not K-1 nonimmigrant visas. Still, she argues that it was arbitrary and capricious for the Board not to apply subsection (f)(1), because it would better protect a K-1 beneficiary’s reliance interests.
This court cannot agree. The Board didn’t act arbitrarily or capriciously by hewing to a regulatory provision that applies on its face, even if another (facially inapplicable) provision might have better protected Song’s reliance interests. Indeed, the Board’s application of subsection (f)(2) aligns with the statutes laying out other aspects of the K-1 process that depend, nearly at every turn, on the petitioner.
Petition denied.
Concurring opinion
Quattlebaum, J., concurring in the judgment:
I concur in the denial of Song’s petition. But I would get there a different way. In my view, this is not a Chevron case. I would simply conduct a de novo review of the question of law presented by the plain text of the applicable statutes and regulations. Doing so leads us to the same place — Song’s petition should be denied.
Song. v. Garland, Case Nos. 18-2496, 21-1852, Dec. 1, 2022. 4th Cir. (Diaz), from Board of Immigration Appeals. Eli A. Echols for Petitioner. Neelam Ihsanullah for Respondent. VLW 022-2-254. 14 pp.
