Summary Judgment Granted in Complex Immigration Case: Legal Strategy in Action

At the Law Office of Alexander R. Vail, we are committed to providing effective legal representation in complex immigration cases. One notable case demonstrating our expertise in navigating complicated legal challenges is Song v. Kent et al., a case that involved securing summary judgment in favor of our client, Ms. Song, a native of China. Ms. Song’s case highlights the importance of a thorough understanding of immigration law and the persistence needed to rectify errors in previous adjudications.

Ms. Song, initially granted lawful permanent residence through a second adjustment application based on her marriage to a U.S. citizen, faced significant hurdles when applying for naturalization. USCIS denied her naturalization application, arguing that her permanent residency had been granted in error due to a previous denial of her first adjustment application. However, through a strategic legal argument, we were able to demonstrate that the Board of Immigration Appeals’ decision in Matter of Le could be applied retroactively, providing a path to rectify the situation and clear the way for Ms. Song’s naturalization. By leveraging equitable remedies and applying the findings from her second adjustment application, we successfully convinced the U.S. District Court to grant summary judgment in favor of Ms. Song, ultimately allowing her to continue her path to citizenship.

Our ability to approach complex immigration challenges from both a legal and strategic perspective enables us to advocate effectively for clients, ensuring that they are not denied their rightful status due to procedural errors or misinterpretations. At the Law Office of Alexander R. Vail, we work tirelessly to protect the rights of our clients and secure favorable outcomes.

SUMMARY JUDGMENT GRANTED Song v. Kent et al., 2:18-cv-00919-GMN-VCF (D. Nev. 2020)

Ms. Song is a native and citizen of China who had entered the United States as a K-2 nonimmigrant. Ms. Song filed an adjustment application shortly after her parent (the K-1 nonimmigrant) married the petitioning U.S. citizen fiancé. U.S. Citizenship and Immigration Services (“USCIS”), however, denied the adjustment application because Ms. Song had turned twenty-one years of age before the agency could adjudicate the application. Notably, several years later, the Board of Immigration Appeals held that adjustment eligibility for an alien fiancé(e)’s derivative child is determined at the time of admission to the United States as a K-2 nonimmigrant. Matter of Le, 25 I&N Dec. 541 (BIA 2011). At the time of her admission as a K-2 nonimmigrant, Ms. Song was an unmarried twenty-year-old. Thus, the Board’s decision in Le essentially invalided the basis upon which USCIS had denied Ms. Song’s adjustment application years before. There was, however, no reason for Ms. Song to move to reopen this previously filed adjustment application since she had already obtained lawful permanent residence on the basis of a second adjustment application filed just a couple of years after the denial of the first adjustment application. This second adjustment application was premised on Ms. Song’s own marriage to a U.S. citizen. 

Several years later, Ms. Song applied for naturalization. USCIS denied her application upon concluding that she had been granted permanent residence in error in contravention of section 245(d) of the Immigration and Nationality Act. After exhausting administrative remedies, Alex sought review in the U.S. District Court for the District of Nevada under section 310(c) of the Immigration and Nationality Act. Alex candidly conceded that Ms. Song was inappropriately granted adjustment on the basis of her own marriage to a U.S. citizen but nonetheless argued that there was a remedy grounded in equity that could rectify the whole situation. 

First, Alex argued that, in light of the framework laid out by the U.S Court of Appeals for the District of Columbia Circuit in Retail, Wholesale and Department Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972) (known as the “Retail factors”), the Board’s decision in Le should be applied retroactively.  This would then mean that Ms. Song was still eligible to adjust her status pursuant to her first application for adjustment. To be sure, USCIS’s finding of ineligibility this first time had cut off the remaining lines of inquiry—namely, whether Ms. Song was otherwise admissible to the United States and whether she merited a favorable exercise of discretion. But, Alex argued, this is where the second adjustment application came into play. 

The fact that Ms. Song’s second adjustment application was ultimately granted reflected that Ms. Song was otherwise admissible and merited a favorable exercise of discretion. Alex therefore reasoned that there was no reason why these findings could not be applied retroactively to Ms. Song’s first adjustment application. Application of the Board’s decision in Le coupled with retroactive application of USCIS’s findings that Ms. Song was otherwise statutorily eligible for adjustment and merited a favorable exercise of discretion would effectively accord Ms. Song lawful permanent resident status as of the date of adjudication of the first adjustment application. This, in turn, would remove the only basis upon which USCIS denied her application for naturalization. The U.S. District Court agreed and granted summary judgment in favor of Ms. Song.

If you're facing a challenging immigration issue or need expert guidance in navigating complex legal matters, contact the Law Office of Alexander R. Vail today. Call us today at (725) 221-5998 or reach out online to schedule a free consultation and take the next step in resolving your immigration case.