CASE: Termination of Removal Proceedings for Adjustment of Status With CIS
CLIENT: Jordanian
LOCATION: Cleveland, Ohio

Our client is a Jordanian citizen who came to the U.S. on a B-2 Visa in 2008. She resides in the greater Cleveland area with her U.S. citizen husband.  They were married in 2006 in Jordan, and prior to retaining our firm, her husband filed an I-130 petition for her while she was in Jordan. Unfortunately, his I-130 petition was denied by the USCIS due to his failure to prove a bona fide marital relationship. Since our client’s husband filed the I-130 by himself, he could not provide sufficient supporting documents when the USCIS issued the Notice of Intent to Deny.  Eventually, this I-130 petition was denied in July 2007, so our client could not come to the United States with a valid immigrant visa.

Thereafter, our client’s husband mistakenly filed Form I-129F to obtain a fiancée visa for our client. However, a K-1 fiancé visa could not be issued because they were already married at the time of the filing.  Thus, this K-1 visa was subsequently denied by the USCIS in 2008.

Our client then came to the the United States with a B-2 visitor visa in December, 2008, but she did not leave the country even after her authorized period of stay was expired. She started to reside with her husband in Ohio. In March 2010, the DHS issued her a Notice to Appear. She was placed in removal proceedings.

They visited our office in early April of 2010.  Once retained, our office promptly filed an I-130 Petition with bona fide marriage evidence. Their I-130 interview was scheduled in December, 2010, and our office thoroughly prepared and accompanied them for the interview. The interview lasted two hours but the I-130 petition was eventually approved.  Our office represented her also at her Master Calendar hearings in Cleveland Immigration Court.

Once 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 and her case was transferred to the USCIS Cleveland Office for final adjudication.

Her I-485 Adjustment of Status interview was scheduled on June 28, 2011, and we accompanied our client and her husband at the interview.  After the interview, the CIS officer recommended her I-485 for approval.  Five years after their marriage, after struggling through the immigration system, our client finally has her green card.

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CASE: Bond Hearing
APPLICANT: Chinese
LOCATION: Eloy, AZ

Our firm was contacted in the middle of May regarding a Chinese individual detained in Eloy, Arizona.  She tried to enter the United States without valid documents and was incarcerated thereafter by immigration officers. She was then given credible fear interviews which she eventually passed.

Upon our retention, we immediately submitted documents to the Immigration and Customs Enforcement to inquire about the status of the bond. To our and our client’s surprise, they set a very high bond of $20,000. Our client wished to have that reduced so we filed a bond redetermination with the Eloy Arizona Immigration Court. Despite her being in jail in Eloy, we communicated with her and tried to gather as much information regarding her relief, equities, criminal record, family, and financial ability to post bond. We contacted our client’s several relatives and friends in New York. We also gathered supporting documents from those relatives, from proofs of their status, residences, to bank statements and tax returns. We also obtained notarized affidavits from them.

On June 15, 2011, we represented our client for the Eloy Arizona Immigration Court bond hearing. At oral arguments, we said that our client was eligible for asylum relief, passed his credible fear interview, was not a flight risk, had established her residence upon release, had established her financial ability to post bond, and that she had ample family ties in the United States who submitted proofs of their residence and copies of their immigration status.  As mentioned previously, the government’s position was a $20,000 bond. Our office argued that a bond of $5,000 would be reasonable in light of the factors under Matter of Patel.  Our office contended that her lack of criminal record, designated address with contact information from her relative in the United States, ability to post bond, and eligibility for asylum relief clearly demonstrate that $5,000 would be reasonable.  The Judge took our arguments and evidence into consideration and a bond of $5,000 was granted. Our client’s relative has thereafter posted bond and she is now out of detention to pursue her asylum claim.

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CASE: Bond Hearing
APPLICANTS: Chinese
LOCATION: Florence, AZ

Our firm was contacted in early April regarding two Chinese individuals detained in Florence, Arizona.  They tried to enter the United States without valid documents and were incarcerated thereafter by immigration officers. They were then given credible fear interviews which they eventually passed.

Upon our retention, we immediately filed bond hearings for our two clients. Despite them being in jail in Florence, we communicated with them and tried to gather as much information regarding their relief, equities, criminal record, family, and financial ability to post bond. We contacted our clients’ several relatives and friends in New York and Alabama. We also gathered supporting documents from those relatives, from proofs of their status, residences, to bank statements and tax returns. We also obtained notarized affidavits from them.

On April 26 and 27, 2011, we represented our clients for the Florence Arizona Immigration Court bond hearings. We argued that our client was eligible for asylum relief, passed credible fear interviews, were not flight risks, had established their residence upon release, had established their financial ability to post bond, and that they had ample family ties in the United States who submitted proofs of their residence and copies of their immigration status. The Judge took our arguments into consideration and a bond was granted thereafter. Our clients’ relatives have thereafter posted bond and they are now out of detention to pursue their asylum claims.

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Issue: Arriving Alien / Adjustment of Status
Nationality: Chinese
Location: Cleveland, Ohio

Our client came to the United States in 2000 without any immigration document (such as a passport and / or visa) from China.  Once he arrived at the Miami International Airport, he was inspected by the DHS officer and was paroled into the United States.  He applied for asylum, but was later denied by the Immigration Judge in New York in 2002. Thus, he had a final order of removal.

According to 8 C.F.R 1.1, the term arriving alien means “an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”

Despite his final order of removal, our client remained in the United States for the next nine years and eventually married his U.S. citizen spouse. Our client and his wife consulted with our firm to see if there’s anything that could be done for them knowing that they already have a final order. We reviewed their file, learned that he was an arriving alien despite the final order, and thus advised them that we can apply for adjustment of status. They retained us in November, 2010.

An arriving alien can adjust his or her status even though he or she has a final order. On May 12, 2006, the Attorney General (through the Executive Office for Immigration Review [EOIR]) and the Secretary of the Department of Homeland Security (through DHS) jointly issued an interim rule that repealed former 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8). These two former regulations barred all “arriving aliens” – including parolees – from adjusting to permanent resident status if they were in removal proceedings.  Additionally, the interim rule set forth new regulations governing the jurisdiction of both EOIR and USCIS over adjustment applications in general and the adjustment of status applications of “arriving aliens” in particular.

The January 12, 2007 USCIS memo states that the USCIS can adjudicate an adjustment of stauts application of a parolee with a final order under these interim regulations. Under the amended jurisdictional provisions of the interim regulations, USCIS has been given jurisdiction over the adjustment applications of all arriving aliens regardless of whether they are in removal proceedings, with a limited exception for certain advance parolees not relevant to this practice advisory. Specifically, the amended regulations grant USCIS “jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” 8 C.F.R. § 245.2(a)(1). The regulations strip an immigration judge of jurisdiction over the adjustment application of an “arriving alien” in proceedings. 8 C.F.R. § 1245.2(a)(1). Consequently, since the immigration judge does not have jurisdiction over such applications, USCIS does, in accord wit
h this regulation. See also 92 Fed. Reg. at 27587 (explaining that one purpose of the amendments to the regulations is to make clear that USCIS has jurisdiction over the adjustment applications of “arriving aliens” in proceedings).

Thus, our office thoroughly prepared and filed the I-130 Petition and Adjustment of Status application in accordance with the regulations.  Everything went smoothly and the receipt notices, fingerprint notices, and work authorization all came on time.  There was no request for additional evidences.

Prior to the interview, Attorney Sung Hee (Glen) Yu with the help of Arty Wynieski from our office thoroughly prepared our client for their USCIS adjustment of status interview. The preparation lasted for several hours because of  the “arriving alien” issue and other possible concerns with regard to our client’s case.

On the interview day, Attorney Yu accompanied our client and his wife at the Cleveland USCIS office.  The interview went well, and our client eventually got his green card on March 28, 2010.  Despite having a final order since 2002, our client finally became a permanent resident of the United States.

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CASE: Jail Release
NATIONALITY: Chinese
LOCATION: Virginia
ISSUE: Bond and Release Jurisdiction

Our client’s niece retained us to release her aunt from immigration custody in Virginia. She retained us within one week of her scheduled Master Hearing with the Arlington Immigration Court. Our client came with a fake Singapore passport and after the Immigration and Customs Enforcement (ICE) interrogated her, she was placed in asylum only proceedings. She had a master hearing in less than a week with the Arlington Immigration Court. Since Singapore is a visa waiver country, and she came in with a fake passport from Singapore, possible bond and release rest on the jurisdiction of ICE, not with the Immigration Judge. Prior to the hearing, we gathered as much information as possible regarding her asylum claim. We took pleadings at the Master Hearing on March 2, 2011 and a Master Reset was scheduled in May for submission of the application. Afterwards, we coordinated with the Immigration and Customs Enforcement to request our client’s release. We sent proof of residence documents upon release, an affidavit from the person whom she would live with, financial documents from her sponsor, a summary of her asylum claim, a brief in support of her release, and other documents. We followed up with the officers multiple times, leaving voice mails and sending emails almost daily. Finally, on March 23, 2011, ICE informed us that based on the information they received, they decided to allow the release of our client on no bond. She is now out of jail and is better equipped to prepare for her asylum case.

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CASE: Termination of Removal Proceedings

CLIENT: Filipino

LOCATION: Chicago, IL / Los Angeles, CA

This case is an example of how new immigration regulations applied and helped in a situation where the immigrant beneficiary’s petitioner is deceased before she applied for adjustment of status.  Our client is from the Philippines and came to the U.S. on a B-2 visitor’s visa in 2001.  Since her last admission, she has overstayed in the United States.  Currently, she resides in Chicago, Illinois.

Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987.  However, she could not apply for her green card until her priority date became current.  Therefore, she had to wait for more than 15 years in order to even apply for her green card.

Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card.  She was placed in removal proceedings after the DHS found out about her overstay in the United States. She was under the impression that nothing could be done since her father (the I-130) petitioner died.

We explained that we can terminate removal proceedings and we can help her adjustment of status application with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security.

Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case.  Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.

Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners are deceased prior to their adjustment of status application.  The new regulation does not require “humanitarian reinstatement” anymore.  Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.

Our client’s US citizen sister was willing to become a substitute sponsor for our client. On January 5, 2011, our office filed a request to join in a Motion to Terminate proceedings with her I-485 application and supporting documents.  Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court (Although she currently resides in Chicago, IL, her NTA was served in Los Angeles and she did not change her venue).

Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings. With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court.  Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge.  The Immigration Judge granted termination without prejudice and her case is now with the USCIS Chicago Office, awaiting adjudication.

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CASE: Termination of Removal Proceedings and Adjustment of Status with USCIS

CLIENT: Senegalese

LOCATION: Columbus, OH

Our client is a Senegalese national who came to the U.S. with fraudulent documents many years ago. He resides in Columbus, Ohio.

Prior to retaining our firm, he married a U.S. citizen spouse and filed an I-130 petition, I-485 green card application and I-601 waiver application for his fraudulent entry. The I-130 petition was approved by the CIS, however, his I-485 application and I-601 waiver were denied by the CIS.  Fortunately, his appeal of the 601 waiver  was sustained by the Office of Administrative Appeals later.

In the meantime, he was placed in removal proceedings after the denial of his initial green card application. Thereafter, he consulted with our firm for representation in removal proceedings and adjustment of status. We explained that we can terminate removal proceedings and we can help his adjustment of status application. Our office was retained and within a few days, we filed a Motion to Terminate with the Immigration Court.

The DHS counsel opposed the termination of hearing. The basis was whether his manner of entry should be considered an admission.  A few months later at the scheduled contested Master Hearing, based on the BIA case Matter of Quilantan, Attorney JP Sarmiento argued that our client’s entry is an admission and that he has an approved I-130 and I- 601 waiver. The Immigration Judge granted termination. We then wrote a letter to the Columbus CIS office to reopen our client’s adjustment of status application since removal proceedings have been terminated. Within a few weeks, another green card interview was scheduled for our client. Client had his green card interview on December 6, 2010 in Columbus USCIS office. We prepared our clients before the interview and Attorney JP Sarmiento accompanied them. At the interview, the officer finally approved our client’s green card application.  After the long process, our client eventually obtained his permanent resident card.

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CASE: Bond Hearing

APPLICANTS: Chinese

LOCATION: Houston Texas

Our firm was contacted in early November regarding 4 Chinese individuals detained in Houston. They entered with fake documents at the George Bush International airport and was detained thereafter by immigration officers. The government informed them and they confirmed with us that it was a “no bond” situation. That meant they would not be released by the Department of Homeland Security even on a bond.

The only recourse was to argue their eligibility for a bond with the Immigration Judge in Houston. Upon our retention, we immediately filed bond hearings for our 4 clients. Despite them being in jail in Houston, we communicated with them and tried to gather as much information regarding their reliefs, equities, family, and financial ability to post bond. We contacted our clients’ several relatives and friend in Philadelphia and New York. We also gathered supporting documents from those relatives, from proofs of their status to bank statements and tax returns. In order to clearly show the Judge our clients’ eligibility for relief, we worked with our clients to prepare an asylum application even though it was not due, just to attach it as an exhibit and present the government and the Judge what their claims are about.

On November 20, Attorney Glen Yu represented our clients for the Houston Immigration Court bond hearing. He argued that our client was eligible for asylum relief, were not flight risks, had established their residence upon release, had established their financial ability to post bond, and that they had ample family ties in the United States who submitted proofs of their residence and copies of their immigration status. The Judge took our arguments into consideration and a bond was granted thereafter. On November 24, the bonds were posted and all of our clients are now out of jail. They can now better prepare for their asylum cases as they are now not detained.

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CASE: Motion to Reopen

CLIENT: Nigerian

COURT LOCATION: Baltimore, Maryland

RESIDENCE: Brooklyn, NY

Our client was a legal entry overstay, married to his U.S. Citizen wife. 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. He was told by the officer that he had to reopen his case. We met the client at our New York office and he retained us on August 2010 for the Motion to Reopen.

If you do not go to your 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).

A lot of people have different reasons for not going to Court. Some did not know what to do. Some did not know the repercussions of not going to Court and did not go. Some were sick or got into an accident earlier that day. Some did not receive notice of the hearing and did not know about it.

To rescind the final order, one has to get his case reopened. This is done through a Motion to Reopen filed with the Immigration Judge who gave the final order. When you have an in absentia order of removal and a Motion to Reopen based on lack of notice is filed on your behalf, your deportation is also stayed. This means that while this motion is pending, the DHS cannot deport you.

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 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 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. Our client now does not have the final order of removal and may seek relief with the Immigration Court, or seek termination of proceedings for CIS adjudication of his green card.

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CASE: Cancellation of Removal

CLIENT: Guatemalan

LOCATION: Ohio

ISSUES: Obstruction of Justice Record, Physical Presence Evidence, Hardship

Our client retained our firm one week before his Individual Hearing. He had two attorneys before who withdrew their representation. For over a year he was unrepresented. Our client claims nobody would take their case for that time. Before he retained our firm, he merely mentioned that he filed for Cancellation of Removal and that his hearing was coming up on October 21, 2010 before the Cleveland Immigration Court.

For a non-permanent resident to be eligible for Cancellation of Removal, the alien must prove that s/he:

• Has been physically present in the U.S. continuously for ten years prior to the issue date of the Notice to Appear;
• Has been a person of good moral character;
• Has not been convicted of any crimes that would make her/him inadmissible;
• Her/his removal would cause exceptional and extremely unusual hardship to her/his U.S. citizen or permanent resident spouse, parent, or child.

We took his case upon asking him questions regarding the above elements. We were not sure if his claim was strong. Our client did not have copies of anything he submitted.

The day after we were retained, we went to the Immigration Court in Cleveland for a file review of our client. We made copies of the file and assessed the strength of their case. We thought at that point it was weak. But we only had 6 days left, 4 business days.

On October 18, 2010, 3 days before our client’s Individual Hearing, pursuant to our client’s request, we filed a Motion for Continuance to allow our firm to prepare for the Individual Hearing and to allow him time to submit more supporting documents. As mentioned, he was not represented for over a year. It was a stretch because the hearing was in three days. Court rules require at least 15 days for pre-hearing motions, but we were only retained 7 days before and asked for Court discretion. We kept following up with the Court but there was no decision for the next two days, understandably so.

Preparing anyway for the Individual Hearing, our firm worked together with the client in the small time we had to prepare supplemental exhibits. We called them several times for supporting documents. The day before the Individual Hearing, there was still no decision on the Motion for Continuance. Our firm eventually was able to gather supporting documents and prepared Supplemental Evidence with 34 exhibits, and arranged them pursuant to the specific elements of Cancellation of Removal eligibility. We arranged the medical documents for each of the three daughters. We arranged all his physical presence documents according to the specific year they referred to, and filed them in person with the Cleveland Immigration Court. We also sent service in person with the Department of Homeland Security. There was no sense in mailing them – the hearing was the next day.

We then prepared the client for his hearing, worked overtime and went over questions several rounds for him and his three witnesses. We focused on the extreme and exceptional hardships his three US Citizen daughters and US Citizen wife would face.  He did not have enough documents as to his physical presence, so we made sure he establishes them through his testimony, the supporting letters that he submitted, and through the consistency of his answers with the witnesses.

At the Individual Hearing, we first made an oral request for a continuance. We explained we were only retained 7 days before, were ready to proceed with testimony, but requested that a continuance be granted if the case would be denied due to some technicality or lack of documentation that could be obtained in a reasonable amount of time. Testimony then followed and we questioned the alien extensively on the hardships his children and wife would face. Our client was prepared, was very consistent, and was honest in his answers. He was detailed with the specific medical issues of each of his daughters. He had a conviction for obstruction of justice but we made sure all the facts are on record to establish that his offense was within the petty offense exception for crimes of moral turpitude, which means despite the conviction, he is still eligible for Cancellation of Removal.

We then proceeded with his US Citizen wife, who also did a good job in her testimony regarding the hardships she and her daughters would face if our client was deported to Guatemala.

At the conclusion of the hearing, the Judge granted Cancellation of Removal for our client. He once came illegally in July of 1998. He never had any status. He worked hard doing random work in factories and restaurants. He married a U.S. Citizen and had three US Citizen children.  A good person, father, and husband, who finally retained an attorney for his Individual Hearing 7 days before its scheduled date. Finally, after 12 years of hard work and perseverance, our client is now a permanent resident (green card holder) of the United States.

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