Castro-Soto v. Holder (1st Cir., February 24, 2010)
HOWARD, Boudin, Gibson
Petitioner was previously married, had adjusted to CR status under I-130 from 1st wife; but the I-751 was denied and he eventually took VD. He reentered illegally 8 days later, and sought to defend against removal under 245(i) due to his second marriage. (Note that he would have been barred from adjusting under the new wife's I-130, before departure - INA 245(d)). He argued that because he had never obtained non-conditional resident status, that the first I-130 still grandfathered him in. The CtApp rejected that argument.
[Mr. Castro-Soto didn't pick a very wise way to proceed. He ought to have appealed the I-751 denial, and begun the process of consular processing in the meantime - since he hadn't accrued unlawful presence, had no criminal history, and hadn't engaged in fraud, he likely could have reentered as an LPR almost as soon as he departed. Sigh. -CR]
Read the opinion here.
