Hernandez De Arellano v. Ashcroft

MEMORANDUM *

Teresa Hernandez de Arellano petitions for review of the Board of Immigration Appeals’ denial of her application for adjustment of status. See 8 U.S.C. § 1255 (a). We grant the petition.

This unusual case developed at a time when the law, as declared by the BIA, was in a state of flux. As a result, in November 2001, when the Immigration Judge refused to delay proceedings so that the rather sluggish INS processes regarding 1-130 petitions could catch up with the more sprightly processes of the Executive Office for Immigration Review, he did not, and could not, consider the effects of In re Velarde-Pacheco, 23 I. & N. Dec. 253 (2002) on his decision or upon the proceeding. That case was based on the realization by the BIA that the prior approach should be changed because it could “deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity to have their adjustment applications reviewed by an Immigration Judge.” Id. at 255 . In so deciding, the BIA wrought a sea change in its understanding of the proper approach to this area of immigration law.

Therefore, we are constrained to grant the petition and remand so that…