Cite as 25 I&N Dec. 817 (BIA 2012) Interim Decision #3754
4
Tovar v. U.S. Attorney General, 646 F.3d 1300, is not binding in this case, which arises
in the jurisdiction of the Fifth Circuit. Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA 1989).
5
In any event, we are not bound by our decisions that have not been designated as Board
precedents. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991); see also
Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011); 8 C.F.R. § 1003.1(g) (2012).
822
alien from filing. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),
aff’d, 857 F.2d 10 (1st Cir. 1988); see also Mai v. Gonzales, 473 F.3d 162,
165 (5th Cir. 2006).
However, actions that do not approximate the filing of an application
or extraordinarycircumstances,such as contacting an attorneyabout initiating
the process for obtaining a visa that has become available, are insufficient
to meet the requirements of section 203(h)(1)(A) of the Act. The alternative
suggested by the respondent, that the deadline could be satisfied by simply
contacting an organization or an attorney for legal advice, is impractical and
leavesopenmanyquestions,includinghowsubstantivethecontactwouldneed
to be and what level of proof would need to be provided regarding
such contact. See Negusie v. Holder, 555 U.S. 511, 524 (2009) (stating that
the Board’s development of a reasoned interpretation may be “influenced
by how practical, or impractical, the standard would be in terms of its
application to specific cases”).
Recently,theUnitedStatesCourtof AppealsfortheEleventhCircuitstated
that the phrase “sought to acquire” does not require that an alien actually file
or submit an application but rather can encompass “substantial steps taken
toward the filing of the application for permanent residency . . . within the one
year period.” Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1302, 1305 (11th Cir.
2011).
4
In its analysis of section 203(h)(1)(A) of the Act, the Eleventh Circuit
discussedthreeunpublishedBoarddecisionsthatappliedabroadinterpretation
of the phrase “sought to acquire.” Id. at 1303-05.
However, the Eleventh Circuit did not reference other unpublished
Board decisions that interpreted “sought to acquire” more restrictively.
5
Moreover, neither Tovar nor the unpublished Board decisions it cited
consideredthe central, andin ourviewconvincing, argumentdiscussed above:
that the inherent vagueness of the phrase “sought to acquire” reflects that
section 203(h)(1) of the Act applies to the processing of applications by two
separate agencies, which use different nomenclatures.
In any event, the Eleventh Circuit ultimately held that the alien’s mere
requests for a visa and for reinstatement of a visa registration with the
Department of State through the National Visa Center (“NVC”) did not
constitute even a substantial step toward the filing of an application for
permanent residence. Tovar v. U.S. Att’y Gen., 646 F.3d at 1305. In that case,
the alien did not make any effort to file an adjustment application in a timely