CASE: Motion to Reopen

CLIENT: Central African Republic

LOCATION: Cincinnati, OH

Our client came to the United States from the Central Republic of Africa in 2004.  One month after, he filed for asylum with the USCIS.  He was interviewed at the CIS office, but his asylum application was referred to the Cleveland Immigration Court.  He went to his first hearing in Cleveland, and appeared at his previous master hearings as well.

He went to his last hearing in September 2010 in Cleveland Ohio where he both submitted a Form EOIR-33 (change of address) and was given an Individual Hearing date of January 9, 2013.

Our client moved a few months later but did not submit another EOIR-33. He did write his new address when he renewed his work permit though and submitted an AR-11 with the CIS.

Our client has always renewed his work permit application since 2005 and has reported his current address at those applications.

Last August, he applied for his work permit renewal with his new address, but his work permit renewal got denied.  The denial stated that our client’s case was abandoned when he missed his hearing on January 26, 2012.

This was the first time that our client learned of the final order.  In fact, he was under the assumption that his next hearing was on January 9, 2013.

Our client was surprised and contacted our office for legal assistance. We advised him that we can file a Motion to Reopen in absentia order of removal.

To rescind the final order, he has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order.  Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the hearing. If the Notice to Appear or hearing notice was sent to the wrong address for example, and not the last address you provided to the immigration service, then there’s a good basis for a Motion to Reopen.

On November 8, 2012, our office filed the Motion to Reopen with the Cleveland Immigration Court. Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service and to the Immigration Court prior to the final order date, and other supporting documents were submitted (9 exhibits).

On December 10, 2012, the Cleveland Immigration Court granted our motion and reopened our client’s case.  Our client now does not have the final order of removal and may continue to seek his relief under asylum with the Immigration Court. He may also renew his work permit as the asylum clock resumed.

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CASE: Request to Join in a Motion to Reopen with the DHS

CLIENT: Chinese

LOCATION: New York, NY

Our client came to the United States from China with valid B-2 visitor’s visa in 1996. Within one year of his entry, he filed an I-589 Application for Asylum.

In January 1998, our client had his asylum interview in Rosedale, New York. After the interview, his asylum application was referred to the New York Immigration Court and the Notice to Appear was issued for our client.

Respondent attended his first hearing, but missed his second hearing in December 1998. Respondent said he did not know of his second hearing, and that his attorney never informed him of such. Thus, he missed it.

Our client has remained in the U.S. ever since to take care and raise his U.S. Citizen daughter. He was with his wife who is now a lawful permanent resident.  Over the past decade, his wife had suffered from several medical issues.

Our client then became the beneficiary of an approved I-130 petition filed by his U.S. Citizen daughter. However, he could not adjust his status based on this I-130 petition due to his final order of removal.

Prior to retaining our office, our client tried to reopen his case with the Immigration Court through two other immigration lawyers in New York; however, both were not successful.

We reviewed his case and informed him that reopening will be tough because previous lawyers have tried twice and were denied. We told him that if we were to do it, we plan to emphasize the medical hardships of his wife and also technically address the ineffective assistance of counsel issue, by having him do all necessary steps, from the bar complaint, to proper notification, and others. He agreed.

On December 8, 2011, our client retained our office to do another Request to Join in a Motion to Reopen.

Once retained, our office extensively prepared and gathered documents for our client’s request to join in a Motion to Reopen with the DHS.  As set for forth in Bo Cooper’s May 17, 2001 Memorandum, in determining whether to join in a Motion to Reopen, the INS (now the DHS) should consider the following factors: (1) whether adjustment of status was available at the prior hearing; (2) whether the alien is statutorily eligible for adjustment of status; and (3) whether the alien merits a favorable exercise of discretion.

In considering these factors, as delineated in William J. Howard’s October 24, 2005, Memorandum, “where a motion to reopen for adjustment of status… is filed on behalf of an alien with substantial equities, no serious criminal or immigration violations, and who is legally eligible to be granted relief except that the motion is beyond the 90-day limitation contained in 8 C.F.R. Section 1003.23, strongly consider exercising prosecutorial discretion and join in this motion to reopen to permit the alien to pursue such relief to the immigration court.”

Thus, we argued that if our client’s case is reopened, he will be prima facie eligible to adjust his status.  In our brief, we argued that our client had substantial equities considering the medical records of his wife and legal status of both his wife and daughter.

Our client had no criminal records and his immigration violation was for overstaying his legal entry.  Despite his overstay, our client still filed for asylum within one year of his entry to the United States. We pointed out that our client was not informed of his immigration hearing due to the ineffective assistance of his previous immigration counsel. We also pointed out that his daughter is a world class pianist who has perfumed in several prestigious events.

On July 11, 2012, our office filed the Request to Join in a Motion to Reopen to the Office of Chief Counsel in New York, NY.  In an 11-page brief, we pointed out several factors from his detailed affidavit regarding his immigration history and equities. Several affidavits from his family members were also included.

We also included over 200 pages of supporting documents to show his wife’s medical issues, his prima facie eligibility for adjustment of status if his case was reopened, and Lozada compliance documents.

On December 4, 2012, after two tries by our client with two other lawyers, the New York DHS-ICE office agreed to join in the motion to reopen for the sole purpose of having the Court terminate the case without prejudice to allow our client to seek adjustment of status.

Now, our client’s case can be reopened and terminated in Court. He then can file for adjustment of status based on the approved I-130 filed by his U.S. Citizen daughter.

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CASE: Motion to Remand / I-130 Approval
CLIENT: Nepalese
LOCATION: Baltimore, MD

Our client came to the United States with a valid B-2 visa from Nepal in January 1998. He remained in the United States for a time longer than permitted. In November 2009, he was placed in deportation proceedings due to his overstay and a Notice to Appear was issued. His asylum application was denied by the Immigration Judge, but an appeal was timely filed.

While the BIA appeal was pending, our client’s daughter became a naturalized U.S. Citizen in January 2012. Our office immediately filed an I-130 petition for our client on February 6, 2012. After we received the I-130 receipt notice, we prepared and filed a Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client. You typically want the I-130 to be approved prior to filing the Motion to Remand, but by submitting the actual I-130 application itself and its supporting documents attached to the Motion, you can show that it is approvable.

In Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992), the BIA found that a motion to remand must conform to the same standards as a motion to reopen, where the respondent presents new evidence which would likely change the result of the case. In a Motion to Reopen before the BIA, the Applicant must show that the evidence is material, unavailable at time of original hearing, and could not have been discovered or presented at the original hearing. 8 C.F.R. § 1003.2(c)(1). In this case, the adjustment of status relief was not available for our client at his previous hearing since his daughter has not become a naturalized U.S. citizen yet.

Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on February 24, 2012. We argued that our client will be eligible for adjustment of status once the I-130 is approved since he had a legal entry to the U.S., has no criminal records, and has no other grounds of inadmissibility. Eventually, on July 10, 2012, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.

While we were waiting for adjudication of the I-130 petition, the USCIS issued a Request for Evidence (RFE) regarding the paternal relationship of our client. Apparently, the birth certificate submitted from Nepal was not enough. So we scheduled a DNA test for our client and this resulted to a 99.99% likelihood of paternity. On September 14, 2012, the USCIS approved the I-130 petition for our client. Now, he can apply for the adjustment of status before Immigration Judge or USCIS upon termination of his proceedings.

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CASE: Motion to Reopen
CLIENT: Chinese
LOCATION: Cleveland, OH / Immigration Court: Detroit Immigration Court

Our client came to the United States on a valid B-2 visa from China in 2002.  Later, she changed her status to F-1 and remained in the United States. She filed an I-485 application as a derivative applicant of her ex-husband in 2007.  However, while the application was pending, our client and her ex-husband got separated.  Unfortunately, in 2008, her I-485 adjustment of status application was denied.   She never received the denial notice from the USCIS since she moved to a different city in Ohio before her case was denied.  Thus, our client never received the Notice to Appear and was not apprised of the fact that she was placed in removal proceedings.  Accordingly, the Detroit Immigration Court issued an in absentia order of removal for our client in August 2010.

In January 2012, our client was picked up by ICE officers.  She was surprised to find out that she was being held because she had a final order of removal and missed her hearing in August 2010.  She explained her situation, so she was not detained, and was placed on an order of supervision. Our client contacted our firm and eventually retained us in March 2012.  Once we were retained, we asked our client to check with her ex-husband or her relatives whether they received the Notice to Appear for her.  We told her that we have to reopen her case first before she can even apply for relief at the Immigration Court.

To rescind the final order, she has to get her case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order. Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive notice of the hearing.

On July 31, 2012, our office filed the Motion to Reopen with the Detroit Immigration Court. Documentation of her address at the date of the final order, a detailed affidavit regarding her addresses and her circumstances around the final order date, documentation of the last address she provided to the immigration service prior to the final order date, and other supporting documents were submitted (20 exhibits). On August 16, 2012, the Detroit Immigration Court granted our motion and reopened our client’s case. Our client now does not have the final order of removal anymore and will seek asylum, withholding of removal and relief under the CAT with the Immigration Court.

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CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 Adjustment of Status
CLIENT: Ghanaian
LOCATION: Cleveland, Ohio (EOIR) / Columbus, Ohio (USCIS)

Our client is a Ghanaian citizen who came to the U.S. on an F-1 Student Visa in August 2003 to study at a college in West Virginia.  He married his ex-wife in 2007, but their marriage ended sometime in 2011.  At the latter part of his previous marriage, his ex-wife, a U.S. Citizen, filed an I-130 petition for him, but later she withdrew the petition as their marriage was not working out at that time. The I-130 petition and our client’s I-485 application were denied, and a Notice to Appear was issued. Our client was placed into removal proceeding.

Our client then married his current U.S. Citizen wife in August 2011, and he retained our office on August 29, 2011. Once retained, our office immediately filed an I-130 Petition with bona fide marriage evidence on September 2, 2011.  While the I-130 petition was pending, our client appeared at the Cleveland Immigration Court on October 19, 2011 for his initial master calendar hearing.  Attorney Sung Hee (Glen) Yu from our office represented him at the hearing, did pleadings, and sought adjustment of status relief upon approval of the I-130 petition.

Our client’s I-130 interview was held on March 26, 2012 at the Columbus USCIS Filed Office.  Prior to the interview, our office thoroughly prepared our client and his wife for the interview at our office. Attorney Yu also accompanied them for their interview. The interview lasted one hour, but the I-130 petition was eventually approved on the same day.

After the I-130 was approved, our office filed a request to join in a Motion to terminate proceedings with the I-485 application and supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to terminate without prejudice.

After his removal proceedings were terminated, our client retained us again for his I-485 adjustment of status application.  Our firm prepared and filed the I-485 Adjustment of Status Application on May 14, 2012. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On July 13, 2012, our client was interviewed at the Columbus USCIS office. Two days later, his I-485 application was approved.  After eight years in the United States, our client is finally a green card holder.

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CASE: Motion to Reopen
CLIENT: Cameroonian
LOCATION: Memphis, TN

Our client came to the United States from Cameroon without inspection in July 2001. Within a year of his entry, he filed an I-589 Application for Asylum and Withholding of Removal in March 2002 to the USCIS.  He was interviewed in April 2002, and his application was subsequently referred to the Memphis Immigration Court in May 2002.  His removal proceedings were continued, but he could not appear at his individual hearing in April 2003 due to being hospitalized. Thus, the Court found him removable and ordered him removed in absentia.

Later, in April 2011, he filed a Motion to Reopen with the assistance of his previous immigration counsel.  However, this Motion to Reopen was denied by the Court in July 2011.  Thereafter, he contacted our office to determine whether he can file a Motion to Reopen again. We explained to him that the only way the Court can reopen his case is based on changed country conditions in Cameroon. Otherwise, our client’s second Motion to Reopen will be considered untimely filed and numerically barred. Our client decided to retain our office on November 22, 2011 for a Motion to Reopen based on changes in country conditions under 8 C.F.R. § 1003.23(b)(4)(i).

We prepared the brief and helped our client with the supporting documents and on March 6, 2012, our office filed a fifteen-page Motion to Reopen with the Memphis Immigration Court, together with a total of 24 exhibits. We included a detailed affidavit regarding his involvement in a political activist group in Cameroon, and several affidavits from his fellow members who confirmed his involvement with the organization.  We claimed that the number of arrests and detentions of his political group have recently escalated since his original removal hearing in 2003 resulting in changed country conditions.  We also attached a letter from a human rights officer in which he stated that he knew about our client’s political involvement in Cameroon. Other supporting documents such as newspaper articles and a recent country report from Cameroon were submitted (24 exhibits).  On March 29, 2012, the DHS filed a Response in Opposition to our Motion.  Nevertheless, on May 2, 2012, the Memphis Immigration Court granted our motion and reopened our client’s case.  Our client now does not have a final order of removal and will proceed to seek asylum relief with the Immigration Court.

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CASE: Motion to Reopen
CLIENT: Ghanaian
LOCATION: Phoenix, AZ / Immigration Court: Arlington, VA

Our client came to the United States on a valid B-2 visa from Ghana in 2004 to visit his aunt in Maryland. Later, he decided to stay in the United States, and did not leave. He worked illegally, and on June 2004, our client got picked up at work by immigration officers and was issued a Notice to Appear.

The Notice to Appear did not have a hearing date and time. He was told he would get a hearing notice in the mail. He never moved for the next two years, yet he never received any hearing notice in the mail. Thus, he never got notice of his hearing. Our client thought that the immigration court just closed his case due to his young age at that time.

More than three years later, he married his U.S. Citizen wife and moved to Arizona. They have a U.S. citizen child as well.

He contacted our firm to inquire about the possibilities of applying for adjustment of status. Upon checking his documents, we found out that he had a final order in 2005. He said he was not aware that he had a hearing date in March 2005. He explained that he got a Notice to Appear, was expecting a hearing notice, lived at the address that was on the Notice to Appear for the next two years, yet never received anything. Because of his absence at the Arlington Immigration Court hearing, the court issued an in absentia order of removal in 2005.  We told him that we have to reopen his case first before he can even apply for adjustment of status.

To rescind the final order, he has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order.  Based on this Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive notice of the hearing.

On March 9, 2012, our office filed the Motion to Reopen with the Arlington Immigration Court. Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service prior to the final order date, and other supporting documents were submitted (26 exhibits). On April 11, 2012, the Arlington Immigration Court granted our motion and reopened our client’s case.  Our client now does not have the final order of removal and may seek adjustment of status relief with the Immigration Court upon approval of the I-130 marriage-based petition that was filed for him. He may also seek termination of removal proceedings and apply for adjustment of status with the CIS instead.

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CASE: Motion to Reopen
CLIENT: El Salvadorian
LOCATION: Cleveland, OH

Our client came to the United States without inspection and admission from El Salvador in 2004. When he was crossing the border, the Customs and Border Patrol (CBP) officials picked him up and placed him in a minor house as he was only 17 at that time.  Later, our client went to the Phoenix Immigration Court for his first hearing, and later on his venue was changed to Cleveland as he informed the Court that he was moving to Cleveland to live with his brother, who was on Temporary Protected Status (TPS).  He then appeared for his first hearing before the Cleveland Immigration Court. At the hearing, they scheduled a date for his next hearing, but also informed him that the hearing will change, and that he will get a notice in the mail. Our client has lived in Cleveland with his brother who has TPS status since. He never got the hearing notice.

On February 1, 2012, our client’s brother got a phone call from the Immigration Service and they asked him about our client.  The brother asked them what our client did wrong, and to his surprise, he was informed that our client had a final order of removal in November 2006. He was told that his brother should go to the Immigration and Customs Enforcement (ICE) on a specific date “to be processed”.

Our client and his brother immediately sought our help, and upon our check of our client’s A number with the court system, found that his final order was issued in November 2006 in Cleveland, OH.  We told him that he has a final order of removal and because of that, when he goes to ICE on his appointment date, he might get picked up. We told them that he has to file a Motion to Reopen before he goes to ICE for his appointment, and show them that the Motion was filed. He was already deportable, and the Motion would stay deportation and lessen the chance that he gets detained.

So our client retained our office the day before his appointment with ICE (Immigration and Customs Enforcement). We met him extensively to prepare the affidavit and on the same day, our office prepared and filed the Motion to Reopen with the Cleveland Immigration Court. We also gave our client a copy so that he could show ICE that he had an automatic stay with the pending Motion to Reopen.  Our client never received his hearing notice; moreover, his prior appearances in Court show that he previously complied with immigration appointments.

Documentation of his address at the date of the final order, a detailed affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service prior to the final order date, and other supporting documents were submitted.  In the Motion, we also explained that our client feared going back to El Salvador and that he intended to file asylum if the case is reopened.

When our client went to ICE, he showed the Motion to Reopen and fortunately, he was not detained. He was also issued an Order of Supervision, which was an added bonus since he became eligible to file a work permit.

Then, on March 13, 2012, the Cleveland Immigration Court granted our motion and reopened our client’s case. Our client now does not have a final order of removal and may seek relief with the Immigration Court.

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CASE: Motion to Reopen
CLIENT: Nigerian
COURT LOCATION: Baltimore, Maryland / New York, NY
RESIDENCE: Brooklyn, NY

Our client came to the United States with valid B-2 visitors visa in 2002, and later married his previous U.S. Citizen wife. He filed his green card application based on his previous marriage, but they separated prior to the interview so he never got notice of his interview, denial and the eventual notice to appear in Court.

Years later, our client married his second U.S. Citizen spouse, and he again filed for his green card application himself. Prior to retaining our firm, he went to his I-130 and adjustment of status interview only to find out that he had a final order many years ago. He did not know about it. So his case was denied. He was told by the officer that he had to reopen his case. We met our client at our New York office and he retained us on August 2010 for the Motion to Reopen.

If an alien does not go to his or her scheduled hearing with the Immigration Court, regardless of the reason, you will on that day have an in absentia order of removal. Once this is triggered, you are susceptible to being detained and subsequently deported by the Department of Homeland Security (DHS). Through a Motion to Reopen, the Immigration Judge can rescind the in absentia order of removal if you are able to show that you did not receive proper notice of the notice to appear. If the Notice to Appear was sent to the wrong address for example, then there’s a good basis for a Motion to Reopen.

On August 31, 2010, our office filed the Motion to Reopen with the Baltimore Immigration Court. Documentation of his address at the date of the final order, a detailed 4-page affidavit regarding his addresses and his circumstances around the final order date, documentation of the last address he provided to the immigration service prior to the final order date, and other supporting documents were submitted. The Department of Homeland Security did not file an opposition or response to our Motion. On November 8, 2010, our office called the Court to follow up and we were informed that the Motion was granted.  Upon approval of the Motion to Reopen, we filed a Motion to Change of Venue as well.  The Baltimore Immigration Court granted our Motion, and later our client’s venue was changed to New York, NY.

Attorney Sung Hee (Glen) Yu from our office accompanied our client at his Master Calendar hearing at the New York Immigration Court in March 2011, and he explained that an I-130 is pending and that a Stokes interview should be scheduled soon. On September 15, 2011,
Attorney JP Sarmiento accompanied our client and his U.S. Citizen wife for their I-130 Stokes interview. The interview went well, and the USCIS officer determined that our client’s marriage to his U.S. citizen wife was bona fide.  On the same day, the I-130 petition was approved.

With the approved I-130 petition, we filed a request to join in a motion to terminate with the DHS.  After review of our client’s application, the DHS agreed to join the motion. On October 22, 2011, the New York Immigration Court granted our Motion to Terminate, so our client’s removal proceedings were terminated.  Thereafter, our client filed an I-485 Adjustment of Status application to the USCIS on October 25, 2011.

Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. There was no Request for Evidence.  Prior to the interview, we thoroughly prepared our clients. On February 13, 2012, our client was interviewed at the New York City, NY USCIS.  We accompanied them at the interview as well. The interview went well, and our client’s green card application was approved on February 28, 2012.

After being in the U.S. for over 10 years and having a final order of removal for about nine years, our client finally has his permanent resident card.

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CASE: Motion to Stay / Motion to Reopen / Jail Release
CLIENT: Indonesian
LOCATION: Cleveland, OH

Our client came to the United States with a valid B-2 visa from Indonesia in March 2003. He later filed for asylum but was denied by the Immigration Judge in May 2010.  Our client subsequently filed a timely appeal with the Board of Immigration Appeals (BIA), but the BIA also dismissed appeal on October 21, 2011.

In December 2011, our client married his U.S. Citizen wife and through our office, filed an I-130 petition on January 3, 2012.  Once we obtained the I-130 receipt notice, we filed a Motion to Reopen on January 10, 2012, within the 90-day deadline for filing Motions to Reopen with the BIA.

On January 12, 2012 our client was picked up and detained by the Immigration and Customs Enforcement. We visited our client and jail and soon filed a Motion to Stay with the BIA. A stay if approved would prevent deportation pending a pending appeal or motion. Our office argued that the Board should issue a stay of removal pending a decision on the Motion to Reopen.  The Motion to Stay was filed with evidence of a bona fide marriage, however, on January 27, 2012, the BIA denied our request for stay. We immediately called ICE and they already set a deportation date of February 2, 2012. Since there was no limit to the Motions to Stay that one can file, we prepared another Motion to Stay on January 27, 2012, spending the whole day with our client’s wife in putting in more evidence of their bona fide marriage including a broad power of attorney entrusting his wife with the management of his financial, personal, and real property interests, a joint bank account, and numerous letters and photographs from family and friends affirming the bona fide nature of their marriage.  Our office argued that these types of documents submitted with our Motion clearly demonstrate that their marriage was entered into in good faith as the BIA set forth in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). On January 31, 2012, two days before the deportation date, our Motion to Stay was approved, which meant that our client would not be deported on February 2.

Eventually, the BIA granted our client’s Motion to Reopen on February 8, 2012, and remanded it to the Immigration Judge to allow our client to apply for adjustment of status (green card). Upon approval of the Motion to Reopen, we promptly contacted ICE and requested release.  On February 10, 2012, our client finally released from the detention facility. Now he simply has to wait for his I-130 interview and once that is approved, he can apply for adjustment of status.

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