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Irene Neypes Birdsong v. Eric H. Holder, Jr., Attorney General of the United States

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Submitted: March 15, 2011

Before LOKEN and COLLOTON, Circuit Judges, and NELSON, District Judge.*fn1

Irene Birdsong, a citizen of the Philippines, was admitted into the United States in December 2001 under a “K-1″ nonimmigrant visa, a visa granted to an alien solely “to conclude a valid marriage with [the alien's U.S. citizen fiancee(e)] within ninety days after admission.” 8 U.S.C. § 1101(a)(15)(K)(i). A K-1 visa may only be issued after approval of a petition by the alien’s fiancee(e). See 8 U.S.C. § 1184(d). Ms. Birdsong remained in this country but did not marry the U.S. citizen who petitioned on her behalf. In April 2003, she married another U.S. citizen, her current husband, who filed an I-130 Petition for Alien Relative on her behalf. The Petition was approved in October 2004. Ms. Birdsong then filed an I-485 Application to Register Permanent Residence or Adjust Status. The Application was denied, and the Department of Homeland Security commenced removal proceedings on the ground that Ms. Birdsong failed to comply with the terms of her K-1 visa. She conceded removability, see 8 U.S.C. § 1227(a)(1)(B), and requested adjustment of status under

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