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1. Hernandez v. Ashcroft, 2003 WL 22289896, C.A.9,2003.

• Nonviability of alien's marriage at time of adjustment was impermissible basis for denying application for adjustment of status. Immigration and Nationality Act, § 245, as amended, 8 U.S.C.A. § 1255
• IJ's determination that, because Hernandez's marriage to Refugio had completely deteriorated, the application for adjustment of status was appropriately denied as a matter of discretion. Hernandez contests this determination pointing to case law establishing that the nonviability of a marriage at the time of adjustment is an impermissible basis for denying an application for adjustment of status.
• The first step in adjudicating a petition for adjustment of status is the nondiscretionary determination of statutory eligibility, followed by a discretionary determination regarding whether an eligible applicant is actually permitted to adjust status. Dillingham, 267 F.3d at 1003; Vasquez v. INS, 767 F.2d 598, 601 (9th Cir.1985).