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Matter of Policarpo TRIANA, Respondent 

Decided December 1, 2022 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

When determining whether a respondent is grandfathered for purposes of adjustment of 

status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) 

(2018), a decision of the United States Citizenship and Immigration Services (“USCIS”) 

to approve a visa petition filed on or before April 30, 2001, does not foreclose an 

Immigration Judge from determining in removal proceedings whether that petition was 

“approvable when filed” within the meaning of 8 C.F.R. § 1245.10(a)(1)(i) (2021). 

FOR THE RESPONDENT: Michael Christian Urbina-Pabon, Esquire, Kennesaw, 

Georgia 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrew J. Hewitt, Assistant 

Chief Counsel 

BEFORE: Board Panel: GREER, GOODWIN, and GORMAN, Appellate Immigration 

Judges. 

GOODWIN, Appellate Immigration Judge: 

This case was last before this Board on June 25, 2020, when we dismissed 

the respondent’s appeal of the Immigration Judge’s April 18, 2018, decision 

denying his applications for adjustment of status under section 245(i) of the 

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i) (2018), and 

cancellation of removal for certain nonpermanent residents under section 

240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1) (2018). This case is presently 

before us pursuant to a January 22, 2021, order from the United States Court 

of Appeals for the Eleventh Circuit granting the Government’s unopposed 

motion to remand. The appeal will again be dismissed. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The following facts are undisputed. The respondent is a native and citizen 

of Mexico. He married his wife in 1989. More than 8 years after the 

marriage, his wife’s lawful permanent resident father filed a Form I-130, 

Petition for Alien Relative, on her behalf, wrongly claiming that she was an 

unmarried daughter of a lawful permanent resident. See INA § 203(a)(2)(B), 

8 U.S.C. § 1153(a)(2)(B) (1994). The petition was approved by the former 
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Immigration and Naturalization Service (“INS”)1 on October 29, 1998, and 

the respondent’s wife became the beneficiary of an approved second 

preference visa petition as an unmarried daughter of a lawful permanent 

resident.2

 There is no visa category for a married daughter of a lawful 

permanent resident. See INA § 203(a)(3), 8 U.S.C. § 1153(a)(3) (providing 

a visa category for married sons and daughters of citizens). 

 In removal proceedings, the respondent applied for cancellation of 

removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1), and 

adjustment of status under section 245(i)(1) of the INA, 8 U.S.C. 

§ 1255(i)(1), claiming that he was grandfathered through his wife’s approved 

petition filed by her father in 1997. The Immigration Judge denied the 

respondent’s applications, and the respondent appealed to the Board. We 

held that, to be grandfathered based on his wife’s prior visa petition, the 

respondent must show that this petition was properly filed with the Attorney 

General on or before April 30, 2001, and that it was “approvable when filed.” 

8 C.F.R. § 1245.10(a)(1)(i)(A) (2020). Because the respondent’s wife did 

not qualify for the visa preference category requested when the petition was 

filed, we determined that the petition was not “approvable when filed” and 

affirmed the Immigration Judge’s denial of the respondent’s application for 

adjustment of status. 

 The respondent filed a petition for review with the Eleventh Circuit. The 

court granted the Government’s motion to remand the case for the Board to 

“reconsider the circumstances regarding whether a visa petition was not 

‘approvable when filed’ despite the fact that it had actually already been 

approved.” The motion to remand noted that prior Board precedent and the 

relevant regulation governing whether a petition is approvable when filed 

“are silent about situations in which the grandfathering petition was 

approved,” and not later revoked. See 8 C.F.R. § 1245.10(a)(3) (defining 

“approvable when filed”). We will now address that gap.3

1 In the Homeland Security Act of 2002, Pub. L. No. 107-296, § 451(b)(1), 116 Stat. 

2135, 2196 (codified at 6 U.S.C. § 271(b)(1) (2006)), the authority to adjudicate visa 

petitions was transferred from the INS to the United States Citizenship and Immigration 

Services. 

2

 The 1998 visa approval is not in the record of proceedings. We note that the 

respondent’s wife adjusted status through a later visa petition filed on her behalf as the 

mother of a United States citizen. References throughout this decision to the respondent’s 

wife’s visa petition relate to the visa petition filed by her father in 1997 and granted in 

1998. 

3

 The Government’s motion to remand, which the Eleventh Circuit granted, did not ask 

us to reconsider the respondent’s application for cancellation of removal, and thus we will 

not disturb our prior decision affirming the Immigration Judge’s denial of that application. 
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II. ANALYSIS 

 The issue in this case is whether an approved visa petition for which the 

beneficiary was not substantively eligible at the time of filing is “approvable 

when filed” within the meaning of 8 C.F.R. § 1245.10, such that it qualifies 

as a grandfathered petition for purposes of adjustment of status under section 

245(i) of the INA, 8 U.S.C. § 1255(i). We review this legal issue de novo. 

8 C.F.R. § 1003.1(d)(3)(ii) (2021). 

A. Legal Background 

Adjustment of status is generally limited to applicants who have been 

“inspected and admitted or paroled into the United States.” INA § 245(a), 

8 U.S.C. § 1255(a). However, in 1994, Congress determined that “many 

close family members of [] legalized aliens were obliged to leave the United 

States so that they could apply for an immigrant visa at a consulate or 

embassy abroad, placing a significant administrative burden on the resources 

of the State Department and exposing the aliens themselves to considerable 

personal expense.” Matter of Briones, 24 I&N Dec. 355, 359 (BIA 2007) 

(citing Adjustment of Status to That of Person Admitted for Permanent 

Residence; Temporary Removal of Certain Restrictions of Eligibility, 59 

Fed. Reg. 51,091, 51,092 (Oct. 7, 1994)). Congress responded by enacting 

section 245(i) of the INA, 8 U.S.C. § 1255(i), which permits the Attorney 

General to grant adjustment of status upon the payment of a fee to those who 

entered the United States without inspection or failed to maintain lawful 

status after having been admitted as nonimmigrants. See Departments of 

Commerce, Justice, and State, the Judiciary, and Related Agencies 

Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 

1765–66 (effective Oct. 1, 1994); see also Matter of Briones, 24 I&N Dec. 

at 359–60 (discussing the history of section 245(i)). 

 Although section 245(i) was originally scheduled to sunset on October 1, 

1997, Congress “enacted a grandfather clause, which allow[ed] certain aliens 

to continue to benefit from the provision.” Matter of Rajah, 25 I&N Dec. 

127, 133 (BIA 2009). To be grandfathered under this statute, the applicant 

must be “the beneficiary (including a spouse or child of the alien beneficiary 

if eligible to receive a visa under section 203(d) of the Act) of” a visa petition 

or labor certification that was properly filed on or before April 30, 2001, and 

was “approvable when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(A), (B); see also 

Matter of Rajah, 25 I&N Dec. at 133. When those statutory requirements 

are satisfied, an applicant may apply to adjust his or her status to that of a 

lawful permanent resident. See INA § 245(i)(1), 8 U.S.C. § 1255(i)(1). 

Derivative beneficiaries of the principal beneficiary may also be 
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grandfathered into the provision if a spouse or child relationship existed with 

the principal beneficiary on or before April 30, 2001. Matter of Estrada and 

Estrada, 26 I&N Dec. 180, 184–85 (BIA 2013). 

B. Defining “Approvable When Filed” 

 The Eleventh Circuit remanded the record to us to interpret the phrase 

“approvable when filed” and determine whether a visa that has been 

approved is necessarily “approvable when filed.” On remand, the respondent 

concedes that the phrase “approvable when filed” is ambiguous. See Linares 

Huarcaya v. Mukasey, 550 F.3d 224, 229 (2d Cir. 2008) (per curiam) (“It is 

clear that ‘approvable when filed’ is ambiguous . . . .”). Neither section 

245(i) nor 8 C.F.R. § 1245.10(a)(3), which governs whether a petition is 

approvable when filed, addresses situations where the grandfathering 

petition was mistakenly approved and not revoked, as is the case here. We 

must therefore develop a reasonable interpretation of this regulation. See 

Nat’l Cable & Telcomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 

980 (2005) (“[A]mbiguities in statutes within an agency’s jurisdiction to 

administer are delegations of authority to the agency to fill the statutory gap 

in reasonable fashion.”). 

 The respondent argues that, because his wife’s visa petition was 

approved, it was necessarily “approvable when filed.” The regulation 

defines “approvable when filed” to mean, in relevant part, 

as of the date of the filing of the qualifying immigrant visa petition under section 204 

of the Act . . . the qualifying petition . . . was properly filed, meritorious in fact, and 

non-frivolous (“frivolous” being defined herein as patently without substance). This 

determination will be made based on the circumstances that existed at the time the 

qualifying petition or application was filed. A visa petition that was properly filed 

on or before April 30, 2001, and was approvable when filed, but was later withdrawn, 

denied, or revoked due to circumstances that have arisen after the time of filing, will 

preserve the alien beneficiary’s grandfathered status if the alien is otherwise eligible 

to file an application for adjustment of status under section 245(i) of the Act. 

8 C.F.R. § 1245.10(a)(3) (emphasis added). We conclude that a visa petition 

that is not “meritorious in fact” at the time of filing will not be considered 

“approvable when filed,” even if the visa petition was, in fact, approved and 

never revoked. 

 The respondent cites to guidance from the Department of Justice issued 

in 2001 to argue that if a visa petition is approved at the time that the 

respondent files an application for adjustment of status, unless the petition is 

later revoked, the petition is approvable when filed for the purposes of 

section 245(i). See Adjustment of Status To That Person Admitted for 

Permanent Residence; Temporary Removal of Certain Restrictions of 
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Eligibility, 66 Fed. Reg. 16,383, 16,385 (Mar. 26, 2001). However, this 

guidance also states that “a visa petition is not approvable when filed if it is 

fraudulent or if the named beneficiary did not have, at the time of filing, the 

appropriate family relationship or employment relationship that would 

support the issuance of an immigrant visa.” Id. In this case, the respondent 

does not contest that when the visa petition was filed, he was married to his 

wife, and therefore his wife did not have “the appropriate family 

relationship” as an unmarried daughter of a lawful permanent resident “that 

would support the issuance of” the visa. Id. Instead, he argues only that the 

visa petition was approved despite the former INS having no knowledge of 

her marriage. 

 While “meritorious in fact” is not defined by the regulations, we have 

held that a visa petition is meritorious in fact if it “‘merited a legal victory’ 

upon filing.” Matter of Butt, 26 I&N Dec. 108, 115 (BIA 2013) (citing 

Ogundipe v. Mukasey, 541 F.3d 257, 260 (4th Cir. 2008)); see also 

Tomay-Hart v. U.S. Att’y Gen., 791 F. App’x 857, 861 (11th Cir. 2019) (“A 

visa petition is meritorious in fact if it ‘merited legal victory’ on the day it 

was filed, ‘notwithstanding . . . subsequent events.’” (quoting Matter of Butt, 

26 I&N Dec. at 115)). For example, when considering whether an applicant 

is eligible for adjustment of status under section 245(i) based on an 

immediate relative visa petition filed by a spouse, the nature of the marriage 

underlying the visa petition should be considered. See Matter of Jara Riero 

and Jara Espinol, 24 I&N Dec. 267, 268–69 (BIA 2007). In such a case, 

“meritorious in fact” requires the underlying marriage be “bona fide at its 

inception” for purposes of grandfathering. Id. at 270. Similarly, “a labor 

certification is ‘meritorious in fact’ if it was ‘properly filed’ and ‘nonfrivolous,’ so long as a bona fide employer/employee relationship exists 

where the employer has the apparent ability to hire the sponsored alien and 

where there is no evidence that the labor certification is based on fraud.” 

Matter of Butt, 26 I&N Dec. at 116. 

 The denial of a visa petition is “not determinative of whether the visa 

petition was meritorious in fact” when filed, and that denial or revocation 

does not automatically foreclose a determination that a visa petition was 

approvable when filed. Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 

at 269; see also Matter of Butt, 26 I&N Dec. at 115 (holding that denial, 

withdrawal, or revocation of a visa petition does not determine whether the 

petition was approvable when filed).4

 A family-based visa petition could be 

4

 The USCIS Policy Manual also provides that approval or denial of a qualifying 

immigrant visa petition or labor certification application is not determinative of whether a 

petition is approvable when filed. See 7 USCIS Policy Manual, pt. C, chp. 2 (updated 

Oct. 19, 2022), https://www.uscis.gov/policy-manual/volume-7-part-c-chapter2#footnotelink-14. For an immigrant visa petition to be “meritorious in fact” at the time 
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denied as a consequence of insufficient evidence while a subsequent petition 

based on additional evidence could be approved. Similarly, the inverse is 

true. Accordingly, the decision of the United States Citizenship and 

Immigration Services (“USCIS”) to approve a visa petition filed on or before 

April 30, 2001, does not foreclose an Immigration Judge from determining 

in removal proceedings whether that petition was “approvable when filed” 

within the meaning of 8 C.F.R. § 1245.10(a)(1)(i), where the evidence 

presented during removal proceedings reflects that the original beneficiary 

of the grandfathered petition was substantively ineligible for the visa at the 

time the petition was filed. See Matter of Aurelio, 19 I&N Dec. 458, 460 

(BIA 1987) (“The proceedings in which visa petitions are adjudicated are 

separate and apart from [removal] proceedings.”). 

 We draw a parallel to our decision in Matter of Kagumbas, 28 I&N Dec. 

400, 405 (BIA 2021), where we held that an Immigration Judge retains the 

authority to inquire into the bona fides of a marriage when considering an 

application for adjustment of status under section 245(a) of the INA. 

Although that case did not address the ambiguity of a specific regulatory 

provision, it clarified that Immigration Judges may assess the validity of a 

marriage upon which a visa petition is based. Id. at 404–05. We premised 

this conclusion on the fact that the respondent has the burden of proving that 

he is eligible for adjustment of status, and an “Immigration Judge’s 

assessment of whether the respondent has met his [or her] burden of proof 

does not become merely a ministerial act simply because there is an approved 

I-130 visa petition.” Id. at 404. Similarly, in this case, to determine whether 

the respondent has satisfied his burden of proof, the Immigration Judge is not 

limited to the perfunctory act of acknowledging that the underlying visa 

petition was previously approved. Instead, the Immigration Judge may 

evaluate, based on the record, the validity of the petition’s approval and 

determine whether it was “approvable when filed.” 

C. Application to the Respondent’s Case 

 The visa classification for which the respondent’s father-in-law 

petitioned required the respondent’s wife to be an unmarried daughter of a 

lawful permanent resident. See section 203(a)(2)(B) of the INA, 8 U.S.C. 

1153(a)(2)(B). However, the respondent and his wife were already married 

at the time the petition was filed, and thus she did not meet the substantive 

eligibility requirements for this immigrant category. Given the evidence 

of filing, the beneficiary must satisfy “all the substantive eligibility requirements at the 

time of filing for the specified immigrant category.” Id. While the internal USCIS policy 

is not binding on this Board, it is persuasive. See Matter of Tijam, 22 I&N Dec. 408, 

415–16 (BIA 1998). 
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presented in this case, the petition did not “merit a legal victory” upon filing 

and was not “meritorious in fact.” As a consequence, the respondent has not 

shown that the visa petition on which he seeks to base his 245(i) adjustment 

of status application was “approvable when filed” within the meaning of 

8 C.F.R. § 1245.10(a)(3). 

 The respondent argues that the “approvable when filed” requirement 

exists to allow respondents to adjust status based on unapproved petitions 

despite the fact that the merits were not adjudicated by USCIS or 

circumstances changed so as to render the petition not approvable. However, 

in this case, the circumstances underlying his wife’s visa petition did not 

change over time. Instead, the information provided on the petition was 

wrong when it was filed. She was not, in fact, the unmarried daughter of the 

petitioner, and, as stated earlier, there is no visa category available for a 

married daughter of a lawful permanent resident.5

 

 Therefore, we will uphold the Immigration Judge’s decision denying the 

respondent’s application for adjustment of status. Accordingly, the 

respondent’s appeal is again dismissed. 

ORDER: The appeal is dismissed.

5

 It is also notable that the respondent is essentially seeking treatment as a derivative 

beneficiary, specifically his wife’s spouse, on a petition that indicated that she was 

unmarried.