The Sixth Circuit has determined that it lacks jurisdiction to review the agency’s determination that an applicant for adjustment of status had not proven her manner of entry. That said, the Court took the opportunity to criticize the agency for making blatant and obvious errors in its determination.
“Although 8 U.S.C. § 1252(a)(2)(B) forecloses review of the IJ’s decision, we do note that a significant error haunts this case. A visa, issued by a United States embassy or consulate, provides the holder a window of time in which she may travel to the United States and present herself to customs officials for entry into the country. It is not a guarantee of admission but does carry some weight because it bears the imprimatur of a United States government entity in the traveler’s home country. If the visa holder is allowed entry into the United States by customs officials, she is issued an I-94 form, her entry is logged, and her passport stamped. The I-94 sets forth the dates the traveler is allowed to stay in the United States. Thus, the dates on a visa and an I-94 will almost certainly never match. The date range on the visa sets forth the timeframe in which the holder may present herself at the border for admission. The I-94 indicates how long the holder may stay in the country, once admitted.
In his oral decision denying her adjustment of status, the IJ castigated Petitioner for presenting a visa that did not align with the government’s ‘visa.’ He even recommended that the government’s attorneys refer the matter to the Fraud Detection and National Security Directorate (‘FDNS’) for investigation. But this concern rests on a fundamental error: the government never entered a copy of Petitioner’s visa into the record. Instead, we have two government exhibits— the letter USCIS sent to Petitioner requesting that she clarify her manner of entry, and an I-797A form supplying Petitioner a replacement copy of her original I-94. Nothing else. The USCIS letter informs her that their ‘records demonstrate that on January 6, 2000, [she was] issued a visa as a non-immigrant visitor’ indicating she was ‘the domestic employee of Shanti Ray.’ The letter provides no information on the valid dates of the visa. The I-797A form and the attached replacement I-94 show that she entered on a B2 visa and was allowed to stay in the country from March 3, 2000, until September 2, 2000. Notably, however, the form contains no information about her visa beyond the fact that she presented a B2 visa, and even contains the warning that ‘this form is not a visa nor may it be used in place of a visa.’ The visa Petitioner offered shows that it was issued on January 6, 2000, and that she entered the country as the ‘domestic employee of Mrs Shanti Ray.’ Not only does Petitioner’s visa not contradict any government visa, it actually matches the USCIS letter in every respect.
The government, in its answering brief, and the IJ, in his oral decision, both conflate the I-797A and I-94 with a visa. The government cites to the above-mentioned USCIS exhibits for the proposition that ‘Petitioner was issued a tourist visa to the United States on January 6, 2000, that was valid from March 3, 2000 until September 2, 2000.’ This is not an accurate characterization of the evidence. That I-797A form shows the details of Petitioner’s I-94, not her visa. Therefore, the two notations ‘Valid from 03/03/2000 to 09/02/2000’ and ‘VALID FROM 03/03/2000 UNTIL 09/02/2000’ refer to the I-94’s dates she is allowed to stay in the country, not the visa, and the ‘B2’ notation simply marks the type of visa upon which she was admitted.
In summary, the IJ repeatedly expressed concern that Petitioner’s visa exhibit did not match up with the government’s visa exhibit when there was no government visa in evidence. It is more than a little disturbing that such sophisticated parties do not appear to know the difference between an I-94 and a visa, particularly when the forms are so visually different. Ultimately, however, this error was only part of the IJ’s reason for denying relief, and the decision was within his discretion on the grounds of Petitioner’s other falsehoods. We merely flag this error as guidance for future proceedings.”
The full text of Patel v. Garland can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0216p-06.pdf
