6th Circuit on 245(k) and status

Kukalo v. Holder, No. 09-3338 (6th Cir. Apr. 13, 2011) (unpublished)

The Court affirmed the denial of this Ukrainian asylum claim.  It also affirmed the denial of a motion to remand for adjustment of status.

The aliens were not 245(i) eligible, so they could only adjust under 245(a) and (c) based on an approved I-140 petition if they were either covered by 245(k) or maintained status or their failure to do through no fault of their own or for technical reasons.

There was an approximately 60 day gap in 1994 between the expiration of their nonimmigrant status and the filing of the I-589.  The final decision on the I-589 was inexplicably delayed 14 years.

The Court rejected the argument that the 14 year delay was a "technical reason."  The Court would not combine 245(k), to excuse the 60 day gap in 1994 with the technical reason exception to excuse the 14 year delay.  The Court deferred to Matter of L-K-, 23 I&N Dec. 677 (BIA 2004), in which the Board found that a pending I-589 is not a technical reason, once it is referred to the Immigration Court.  Plus, the Kukalo's filed their applications after falling out of nonimmigrant status.