Ninth Circuit Addresses Lawfulness of Divorce of Person who Overstayed B-2 Visa

The Ninth Circuit has determined that an individual who enters the US on a B-2 visa and overstays the visa may apply for a foreign divorce even if she and her spouse are both residing in California. The court found that federal law prevents a person who overstays a B-2 visa from establishing a lawful domicile in California. As such, the California law that prevents recognition of a foreign divorce when the two parties are domiciled in California was not applicable. The overstayed immigrant could obtain a foreign divorce and be legally free to marry a new spouse in California.

The full text of Park v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/07/18-55914.pdf

Ninth Circuit Applies Maslenjak Decision to Application for Lawful Permanent Residence

In an unpublished decision, the Ninth Circuit applied the Supreme Court's recent decision in Maslenjak v. US to determine if a petitioner had been lawfully admitted to permanent residence.  The petitioner had used a false birth certificate to adjust status, though all evidence suggested that he was eligible to adjust under his true identity.  "First, Maslenjak suggests that falsehoods that do not otherwise affect an applicant’s substantive legal eligibility for permanent residence do not justify concluding that the applicant was not 'lawfully admitted for permanent residence.'  Second, Maslenjak suggests that substantive qualification for LPR status is a complete defense to the allegation that one was not 'lawfully admitted for permanent residence.'”

Thus, the court remanded for the Board of Immigration Appeals to determine if it should adopt the Maslenjak standard for determining whether a noncitizen is lawfully admitted to permanent residence.

The full text of Sandoval v. Sessions can be found here:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/08/18/13-73009.pdf

Sixth Circuit Rules on the Meaning of "Lawfully Admitted to Permanent Residence"

In the context of a naturalization case, the Sixth Circuit has determined that a non-citizen is not lawfully admitted to permanent residence if the the admission was not substantively valid.  In the instant case, the petitioner was approved for an immigrant visa as a child accompanying or following to join a principal application parent.  However, he entered the United States 24 days before his father (the principal applicant).  Thus, his lawful permanent residence was accorded in error and he is not eligible for naturalization.

The full text of Turjah v. U.S. Citizenship and Immigration Services can be found here:

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0001p-06.pdf