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Fifth Circuit Rules that VAWA Does Not Trump K-1 Bar

  • By: Ahmad Yakzan
  • Published: October 7, 2013
The Fifth Circuit ruled last week that the approval of a VAWA petition does not trump the K visa bar. Le v. US Atty Gen. Under the Act, a person who enters the United States as a fiancé may not adjust her status except through marriage to the Petitioner. Le came the United States pursuant to a K-1 fiancé visa. The petitioner was already married and she could not marry him. She subsequently met a United States citizen who was abusive. She petitioned for a VAWA self petition which was approved. She subsequently filed for adjustment of status, which was denied by the District Director and she was placed in proceedings. While in proceedings she argued that she was eligible for adjustment of status or cancellation of removal. The IJ denied her requests since she entered as a K-1 visa holder and the BIA upheld.
Upon review before the Fifth Circuit, Le argued that her status can be adjusted since her approved VAWA petition trumped the K-1 bar. the court refused to follow such reasoning since, as it opined, the statute does not have such exception for VAWA self-petitioners and it could not breathe in such exception when the statutory language does not contain it.
Unfortunately for Ms. Le, the odds were stacked against her and she could not have won the case. VAWA allows an illegal immigrant to adjust her status if she proves that she was subjected to abuse, because the law waives such illegal entry but does not waive the K-1 bar. I wonder if she will petition for certiorari review.

   

Ahmad Yakzan

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