Does 245(i) Grandfathering Preclude Removal from the U.S.?

This is an interesting issue. Many people believe that a petition filed on their behalf prior to April 30, 2001, thus grandfathering them under INA Section 245(i), protects them from removal (deportation) from the United States. In a recent case, Hadayat v. Gonzales (7th Circuit August 2006), the petitioner entered the U.S. on a visitor visa and subsequently overstayed his status. He then became the beneficiary of a fourth-preference family-based visa petition filed by his U.S. citizen brother. Since the petitioner was Indonesian, he was required to register under the NSEERS program and was immediately placed in removal proceedings. The petitioner made the argument that because his fourth preference petition was filed under Section 245(i) of the INA, he cannot be removed from the U.S. The court disagreed. In this particular case, a visa number for the petitioner was not available. The 7th Circuit ruled in Hadayat v. Gonzales that "granfathered" status under INA 245(i) does not preclude removal when a visa number remains unavailable.