Landin-Molina v. Holder (9th Cir. 2009)

Before 1952, the general rule in immigration law was that one had to be outside the United States in order to be eligible to receive an immigration visa.  American embassies and consular offices in foreign countries issued such visas, which permitted the recipient to enter the U.S. and live here permanently.  Those who were already in the U.S. and who wished to obtain an immigration visa must leave the country.  There was no mechanism to adjust one’s status from non-immigrant to immigrant.  In 1952, Congress made changes to the immigration laws so that visitors who were physically present in the U.S. on non-immigrant visas may adjust their status to lawful permanent residents without having to leave the U.S.  For the first time, a person may obtain permanent resident status while remaining in the U.S.  The adjustment of status regime which Congress created was not open to just anyone, however.  It had many restrictions which limited its availability.  One of the most important was that in order to be eligible for adjustment of status, the applicant must be in the U.S. lawfully.  That is, the applicant must have entered the country after having been inspected by a customs official at the point of entry, and the applicant’s status must be current at the time of the application.  If the applicant could not establish these criteria, he or she would not be eligible for adjustment of status.

In 1994, Congress created a loophole to this general rule by enacting § 245(i) of the Immigration and Naturalization Act, which authorized adjustment of status for certain persons who were unlawfully present in the U.S. (i.e., those who entered without inspection or whose visa status has expired).  Section 245(i), as it became known in the immigration community, was indeed a giant loophole because it permitted a whole class of persons who were previously ineligible for adjustment of status to apply for permanent residence status.  The door was not thrown completely open, however, because Congress attached some conditions to § 245(i).  Namely, the applicant must have had a sponsor file an immigrant petition or labor certification on the applicant’s behalf prior to April 30, 2001, which was the sunset date for § 245(i).  Thus, Congress created a seven year window in which unlawful aliens were able to obtain lawful status if their sponsor filed sponsorship papers in time.

The benefits afforded by § 245(i) were expansive and far reaching because it also extended adjustment eligibility to spouses and children of persons who benefitted from § 245(i).  That means a spouse or child of a person who adjusted status through § 245(i) may do the same.  This was known as “grandfathering,” which permitted additional persons to piggyback on the eligibility of one person.  A person who qualified for § 245(i) may be able to confer his eligibility to his spouse and all his children (such persons in turn, could also confer eligibility).  Like all immigration benefits, however, there were certain limitations.  In the Landin case, the Ninth Circuit set forth what those limitations are with respect to spouses of § 245(i) beneficiaries.   

Landin, the alien in this case came to the U.S. without inspection in 1999.  In 2004, after being placed in removal proceedings, Landin married his spouse, who had recently obtained lawful permanent residence status pursuant to § 245(i).  Landin argued that he had been “grandfathered” § 245(i) benefits on account of his marriage to his wife, who was a § 245(i) beneficiary.  The immigration judge and the Board of Immigration Appeals rejected Landin’s argument, finding that he had not been grandfathered because he married his spouse after she had already adjusted status.

On appeal, the Ninth Circuit affirmed the lower court’s decision.  The Ninth Circuit found that in order for a spouse to be eligible for grandfathering of § 245(i) benefits, the marriage must have existed prior to the beneficiary spouse’s adjustment of status. This is because § 245(i) required a derivative spouse to be “accompanying or following to join” the principal spouse.  If the marriage did not exist at the time the principal spouse adjusted status, it would not be possible for a beneficiary spouse to fulfill the requirement that he was “accompanying or following to join” the principal spouse.  The plain language of the § 245(i) implicitly requires that the derivative spouse be a “spouse” before the principal spouse adjusts status.  A marriage entered into after the fact would not qualify.  For this reason, the Ninth Circuit concluded that Landin’s adjustment application was properly rejected because he married his spouse after she had already become a lawful permanent resident.  Her eligibility for § 245(i) benefits did not flow to him because he was not a spouse at the time she received the benefits.