Published on:

Appeal Denies Venezuelan Permanent Resident Status

As an immigration attorney, I recognize that the justice system may place seemingly unjust burdens upon foreign nationals applying for a visa, permanent residency, or citizenship.

This was highlighted in a recent case, Toro v. Sec. for the Dept. of Homeland Security, et al, in which Aracelys Toro, a Venezuelan national was denied a permanent residency status due to her Cuban husband’s inadmissibility under the Cuban Refugee Act of 1966. Her husband was denied residency as a result of prior criminal violations, which led to Toro’s subsequent denial as well.

Toro later appealed the decision by the U.S. Customs and Immigration Services and asked the agency to grant her residency on the basis of the Violence Against Women Act of 1994 which had been amended to the Cuban Refugee Act. This statute permits battered spouses of Cuban aliens to self-petition for residency status.

USCIS again denied the petition by Toro. The decision was based on the fact that Toro’s marital relationship with her husband did not qualify under the Cuban Refugee Act. USCIS declared that because her husband had been previously denied status as a permanent resident, Toro did not qualify as a “spouse of any alien described in section 1 of CAA.”
Upon appeal to the Administrative Appeals Office, Toro was again denied a permanent residency. The AAO supported prior USCIS decisions stipulating that Toro’s husband did not meet the qualification that he must be admissible to the U.S. for permanent residence. The AAO also supported its decision with the reasoning from the Board of Immigration Appeals’ decision in the Matter of Quijada-Coto.

Toro subsequently filed a complaint in the U.S. district Court. She supported her appeal on the basis that her petition’s denial was in conflict with the intent of Congressional legislators who drafted the law. She also argued that the Fifth Amendment’s equal protection clause should enable her to receive permanent residency. The district court judged in favor of USCIS due to the plainness of the language in CAA.

Toro appealed to the U.S. Court of Appeals for the Eleventh Circuit. This court too found in favor of USCIS. Once again the court found the simple language of the Cuban Refugee Act to unequivocally convey the intent of Congress. Therefore because Toro’s husband is disqualified from seeking permanent residency, the appellant is also justly denied residency status as well. Although Toro argued that only the first two clauses should govern applications and the other three are only guidelines, the Appeals Court found no reason to support that distinction.

Toro also argued under the equal protection clause that she should not be disqualified on the basis of her husband’s inadmissibility. The court found that VAWA protection in relation to self-petitioning was intended to prevent a spouse from using the petitioning process as a means of control. Because the husband had already been denied, no such control issue pertained.

As an immigration attorney, I am constantly confronted by new cases with unique circumstances. It is a source of endless fascination to me how the justice system decides such complex and groundbreaking cases. The lessons learned from Toro and similar cases help me provide advice and assistance to my clients.