GURFINKEL WINS UNPRECEDENTED COURT VICTORY
Ninth Court Circuit of Appeals Orders INS to Retroactively Grant
Greencard to "Aged-Out" 21 Years Old
 Aged
out, but not out. Michael Torres, who was retroactively granted
legal permanent resident status after he had turned 21 on order
of the Ninth Circuit Court of Appeals, with his mother Rosa and
his attorney, Michael J. Gurfinkel, working against all existing
law and contrary opinions by fellow immigration lawyers who deemed
the case impossible to win, convinced the Ninth Circuit Court
that the INS erred in not expediting fingerprinting processing
of Michael Torres, who "aged out" only 12 days before
his family got their green cards.
Existing case law was against
him. All the law books said it couldnÕt be done. A Federal District
Court Judge had already dismissed his lawsuit, and other immigration
attorneys at the Annual Convention of the American Immigration
Lawyers Association said that he had no case against INS. Unfazed
by this apparently hopeless situation, Atty. Michael Gurfinkel
fought for his client, taking the case all the way to the Ninth
Circuit Court of Appeals, and won! The Ninth Circuit (which is
just one court below the Supreme Court) ordered the INS to retroactively
grant adjustment of status (greencard) to a child, even though
the child had already turned 21.
In this case, GurfinkelÕs client,
Rosa Torres, had been under petition by her employer. As soon
as the priority date on the petition became current, Atty. GurfinkelÕs
office immediately filed applications with the INS for adjustment
of status for RosaÕs entire family. At that time, one of RosaÕs
sons, Michael Torres, was turning 21 in less than two months.
(Ordinarily, once a child turns 21, the child cannot be included
for a greencard under their parentÕs petition.) Therefore, Atty.
GurfinkelÕs office repeatedly urged the INS to expedite the processing
of the TorresÕ case, in order that Michael Torres could receive
a greencard along with the rest of his family.
However, INS stated that only
INS could request the fingerprints, and until it received FBI
fingerprint results for the family, INS would not approve any
application for adjustment of status.
Because Michael Torres would
soon be turning 21, Atty. GurfinkelÕs office repeatedly requested
INS to expedite the FBI fingerprint clearance, but INS refused.
Consequently, Michael TorresÕ FBI fingerprint results (which showed
no criminal record), were received by INS after Michael Torres
had already turned 21 years of age. INS then denied Michael TorresÕ
adjustment of status application, because he had "aged out"
-- a mere 12 days earlier.
Atty. GurfinkelÕs office then
sued INS in Federal Court, taking the position that it was unfair
to families with children turning 21 that INS did not expedite
the case. Atty. Gurfinkel felt that the case cried out for justice.
The INS fought back, filing a motion in Federal District Court,
to have the case thrown out, claiming that INS had no duty to
expedite the case before MichaelÕs 21st birthday. The District
Court Judge agreed with the INS, and dismissed the case.
Many attorneys would have given
up at that point. However, Atty. Gurfinkel would not concede.
His office fought on, appealing the District CourtÕs dismissal
all the way to the Ninth Circuit Court of Appeals.
Recently, the Ninth Circuit
agreed with Atty. Gurfinkel, finding that INS should have expedited
Michael TorresÕ case under INSÕs own written guidelines, concluding
that, "The INS acted arbitrarily and capriciously in failing
to request expedited treatment of Michael TorresÕ fingerprint
check by the FBI. It is undisputed that but for the INSÕ failure
to receive FBI clearance [before Michael TorresÕ 21st birthday],
Torres would have obtained the adjustment he sought. Accordingly,
we reverse the judgment of the District Court and remand with
instructions that the INS be ordered to grant Michael TorresÕ
application for adjustment of status to lawful permanent resident
"nunc pro tunc." The ruling means that INS was ordered
to retroactively grant Michael a greencard, even though he already
turned 21 years of age.
Rosa and Michael Torres were
ecstatic over this victory. (Rosa and the rest of her family were
eventually able to receive their greencards.) However, until this
Court victory, her son, Michael, had been "left out"
because he had already turned 21.
"I am so grateful to Atty.
GurfinkelÕs office for fighting so hard for me. Most lawyers wouldnÕt
even have taken the case because the law was against them. But
Atty. Gurfinkel fought for my rights."
Atty. Gurfinkel was also happy
for his clients: "I just remember speaking with some of my
colleagues at the American Immigration Lawyer AssociationÕs convention
about the case, and how every single one of these attorneys said
the case was ÔhopelessÕ, and it was impossible to obtain a retroactive
green card for a child who Ôaged-outÕ. I didnÕt listen to them,
because I felt in my heart that these clients deserve justice.
I guess it only goes to show that there is hope in some cases
which may seem hopeless."
Atty. Gurfinkel proved once
again that he is the "Attorney of Last Hope" and a "Miracle
Worker". Where others said it was "impossible",
Atty. Gurfinkel made it possible.
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