Court Reviews Agency’s Settled Course on Remanding for Adjustment of Status
The BIA improperly denied Badose’s unopposed motion to remand for two main reasons. First, the court found the BIA arbitrarily deviated from a “settled course of adjudication”. The First Circuit noted that for approximately fifteen years, the BIA had routinely granted similar unopposed motions to remand so that non-citizens in removal proceedings could pursue an adjustment of status.
The second error was that the BIA improperly engaged in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). The BIA stated that Badose’s marriage occurred after the denial of his claims by the Immigration Judge, and that he “was aware that his status was in jeopardy”. The court interpreted this statement as an “insinuation… of an improper motive for the marriage,” which constituted a factual determination on the legitimacy of Badose’s marriage.
The court emphasized that the BIA’s denial of the remand motion was a “material error of law”. Because of these errors, the First Circuit granted Badose’s petition for review, vacated the BIA’s decision, and remanded the case back to the BIA. Badose, a national of the Democratic Republic of the Congo, had initially entered the U.S. in 2014 on a student visa and later sought asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge had previously denied his claims based on an adverse credibility determination, finding inconsistencies in his testimony. This approval made him prima facie eligible for an adjustment of status, prompting his motion to remand.
