U.S. Citizenship Non- Decision of the and Immigration Administrative Office Services

In Re: 12093 700 Date: FEB. 25, 2021

Appeal of Vermont Service Center Decision

Form 1-485, Application for Adjustment of Status of Alien in U Nonimmigrant Status

The Applicant seeks to become a lawful permanent resident (LPR) under section 245(m) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1255(m), based on his derivative "U" nonimmigrant status. The Director of the Vermont Service Center denied the Form 1-485, Application for Adjustment of Status of Alien in U Nonimmigrant Status (U adjustment application), and the matter is now before us on . Upon de nova review, we will remand the matter to the Director for the issuance of a new decision.

I. LAW

U.S. Citizenship and Immigration Services (USCIS) may adjust the status of a U nonimmigrant to a lawful permanent resident (LPR) if that individual demonstrates that he or she has been physically present in the United States for a continuous period of at least three years since admission as a U nonimmigrant, has not unreasonably refused to provide assistance in a criminal investigation or prosecution, and the individual's continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. Section 245(m) of the Act; 8 C.F.R. § 245.24(±). When exercising its discretion, USCIS may consider all relevant factors, both favorable and adverse, but the U nonimmigrant ultimately bears the burden of showing that discretion should be exercised in his or her favor. 8 C.F.R. § 245.24(d)(l0)-(11).

Individuals in who are granted voluntary departure in lieu of an order of removal are subject to certain penalties if they fail to timely depart the United States. These penalties, which include a 10-year period of ineligibility for relief under section 245 of the Act, are outlined at section 240B of the Act. This section states, in pertinent part, as follows:

(d) Civil Penalty for Failure To Depart

(1) IN GENERAL- Subject to paragraph (2), if an alien is permitted to depart voluntarily under this section and voluntarily fails to depart the United States within the time period specified, the alien-

(A) shall be subject to a civil penalty of not less than $1,000 and not more than $5 ,000; and (B) shall be ineligible, for a period of 10 years, to receive any further relief under this section and sections 240A, 245,248, and 249.

If: prior to departing the United States, an individual files any judicial challenge to an administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 USC § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. The penalties for failure to depart under section 240B( d) of the Act shall not apply to an individual who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. 8 CFR § 1240.26(i).

II. ANALYSIS

The Applicant, a 49-year old native and citizen of El Salvador, entered the United States without inspection, admission, or parole in 1995. The Applicant was placed in removal proceeTngs inl2007. Onl I2010, an immigration judge granted the Applicant voluntary departure until 2010, with an alternate order of removal. The Board of Immigration Appeals (BIA) dismissed the Applicant's appeal onl I2011, ordering that the Applicant be permitted to voluntarily depart the United States within 60 days of the order. Inl 12011, the Applicant filed a petition for review and for stay with the United States Court of Appeals for the Ninth Circuit. On February 25, 2015, USCIS granted the Applicant U-4 status based on his family member's victimization and assistance to law enforcement. The Applicant's removal proceedings were reopened and terminated without prejudice onl I 2015, and the United States Court of Appeals for the Ninth Circuit issued its mandate on June 22, 2015. The Applicant filed the instant U adjustment application in August 2018. The Director denied the application on March 13, 2020.

The Applicant bears the to establish eligibility for the requested benefit by a preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361. This office reviews the questions in this matter de novo. See Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, as explained below, we will remand the matter to the Director for the entry of a new decision.

The Director denied the Applicant's U adjustment application, determining that at the time the Applicant applied for U adjustment, in August 2018, he was ineligible to adjust status because he failed to depart the United States during the period of voluntary departure. 1 The Director noted that the Applicant was barred from adjusting status until September 12, 2021, when the 10 year bar for failing to depart pursuant to the voluntary departure order was no longer in effect. 2

On appeal, counsel for the Applicant maintains that the Director erred in denying the U adjustment application. Counsel states that the Applicant is eligible to adjust status pursuant to section 245(m) of

1 The Director also dete1mined that the Applicant had failed to establish that his failure to depart the United States pursuant to the voluntary departure order was not voluntary. 2 After concluding that the Applicant was not eligible for lawful permanent resident status because he had failed to timely depart the United States and denying the U adjustment application accordingly, the Director also noted that the positive and mitigating equites in the Applicant's case were outweighed by the adverse factor of his criminal history and therefore, the Applicant had not met the burden of demonstrating that a favorable exercise of discretion was appropriate.

2 the Act because the voluntary departure grant was automatically terminated upon the Applicant's

I O 12011 petition for review filing with the United States Court of Appeals for the Ninth Circuit and he is thus no longer subject to the penalties associated with a failure to depart the United States. Counsel also maintains that the Applicant merits a favorable exercise of discretion. Counsel concludes by reasserting the Applicant's eligibility for adjustment of status.

As correctly asserted by counsel in response to the Director's Notice oflntent to Deny and on appeal, the Applicant is not subject to the penalties detailed in section 240B(d) of the Act. The Applicant's voluntary departure order was automatically terminated upon his petition for review filing with the United States Court of Appeals for the Ninth Circuit. See 8 CFR § 1240.26(i). Therefore, the Director's decision finding that the Applicant was barred from adjusting status under section 245 for a period of 10 years because he had failed to depart the United States during the period of voluntary departure is withdrawn.

As the Applicant has established on appeal that he is eligible to adjust status pursuant to section 245(m) of the Act, we remand the matter to the Director to further consider the evidence in the record, including the additional documentation submitted on appeal, and determine if the Applicant has established that a favorable exercise of discretion is appropriate in his application to adjust status to that of a lawful permanent resident.

ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new decision.

3