CASE: I-130 / I-485

POTENTIAL ISSUES PRE-RETENTION: Immigrant Intent

APPLICANT / BENEFICIARY: Canadian

LOCATION: Dallas Texas

Our client last entered the United States on January 23, 2010. She has been going back and forth from Canada to the U.S. to visit his boyfriend. She had no intention to marry her husband preceding her last entry but a few weeks after her last entry, her husband proposed to her and they got married. It is important to show that there was no immigrant intent on your last entry and in this case, there was none. The officer may have doubts though due to the closeness of the marriage date to the date of entry. Our firm was retained to process the paperwork and prepare the couple for the interview. The I-130 and I-485 was filed on June 28, 2010. The receipt notices and fingerprint appointments were issued immediately and on August 31, 2010, our client received her work permit. Interview notices were issued on August 13, 2010 and our office prepared them prior to the interview, specifically addressing the immigrant intent issue. On September 20, 2010, they went to their interview in Dallas and the officer right after informed them that their case was to be approved. The CIS officially issued the I-485 approval on September 22, 2010, less than 3 months from filing the application and petition.

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CASE: I-90

POTENTIAL ISSUES PRE-RETENTIONS: “Mortgage-Fraud” California Statute: Crime of Moral Turpitude or Not? Deportable Offense or Not?

APPLICANT / BENEFICIARY: Filipino

LOCATION: California

The Immigration and Nationality Act (INA) at section 237 allows the Department of Homeland Security (DHS), through the U.S. Immigration and Customs Enforcement (ICE) to deport someone who has committed a crime involving moral turpitude, commonly referred to as a CIMT, if the conviction occurred within five (5) years after admission and the conviction was for a crime for which a sentence of one year or longer may be imposed.

Our client’s green card was about to expire, and she wanted to apply for an extension, but she was hesitant due to a criminal conviction she had. She was convicted under California law for what her attorney termed as “mortgage fraud”.

Our firm did research on the specific California statute and analyzed it under Crime of Moral Turpitude immigration law. We explained that a line of cases view convictions under any statute related to fraud as a CIMT, which can potentially make her deportable. We also found that some “fraud-like” statutes are not actually fraud, but could be classified as “regulatory violations”, which are not CIMTs. If the CIS deems her conviction as a CIMT, not only will the green card extension be denied, she also would be deportable.

After extensive research and analysis, our firm found that we had a very argument in classifying her conviction as a regulatory violation and not fraud, and thus she does not have a CIMT. We filed the I-90 extension in July 22, 2010. Our client was fingerprinted and a background check was conducted for her. Upon review of her case, the CIS deemed that she indeed does not have a CIMT and is not deportable. Her I-90 was approved on September 20, 2010 and her green card was extended for ten years.

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CASE: Removal Proceedings, Adjustment of Status

APPLICANT / BENEFICIARY: Senegalese

LOCATION: Ohio

Our client entered the U.S. using his brother’s passport back in 2001. He presented this at the airport customs and was let in by the officer. The officer checked the passport and asked a few questions to our client, as is customary, and he was able to enter despite using his brother’s passport.

Several years later, our client married a U.S. Citizen. Knowing than an I-601 hardship waiver was needed for his green card application due to his fraudulent entry with his brother’s passport, he filed everything together with the 601 waiver. The I-130 petition was approved, which means that the government believed the marriage was in good faith. The green card application though was denied, as well as the I-601 waiver. The denial pointed out that there was not enough hardship to meet the standards for the 601 waiver.

An appeal was filed to the AAO for the 601 waiver and after almost a year, the 601 was approved. However, our client was issued a Notice to Appear and was scheduled for a removal hearing with the Cleveland Immigration Court.

Our office was retained to represent him for removal proceedings. Days before the hearing, the government changed the Notice to Appear and alleged him as an “alien present in the United States who has not been admitted or paroled” under section 212(a)(6)(A)(i). With this charge, even with the approval of the I-601 hardship waiver, our client would not be eligible for his green card. The government’s position was that our client’s entry with his brother’s passport was not an “admission” and that since he was not admitted, he can’t be eligible to adjust status as a permanent resident under INA § 245A.

At the Master hearing, we denied that allegation and the charge of removability. The Judge then set the case for a hearing on the issue. There were a line of cases addressing the issue, with arguments for both the government’s position and our position. Matter of Areguillin and Matter of Orozco were the two main cases at that time. Matter of Areguillin held that it’s the “procedural regularity” of the entry which results in “admission”.  The Orozco case though held that an entry on someone’s passport, such as our case, cannot be an admission, and thus people in this situation would not be able to adjust to permanent resident status despite an I-601 waiver.

Between the Master hearing and the Individual Hearing, the Board of Immigration Appeals issued an interim decision, Matter of Quilantan, which was on point with our case. It reaffirmed Areguillin in that procedural regularity is all that’s needed to be admitted in a particular status, and not the substance of the entry. Thus, someone who entered through customs, was questioned, inspected, and eventually let in despite a fake passport is considered “admitted”.

Prior to the scheduled hearing, we submitted documents to Court and to the government pertaining to our position that our client is in fact admitted and thus, with the waiver of inadmissibility granted despite our client’s fraudulent entry, should be eligible to to apply for permanent residency. At the hearing itself, we had a pre-hearing discussion with the government in which of Matter of Quilantan was discussed. The government agreed with our position and decided to terminate the case without even going through a hearing. The Immigration Judge discussed the issues and eventually terminated removal proceedings for our client.

Jurisdiction for his green card application now goes back to the USCIS in Columbus, Ohio, where his green card should be issued soon.

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CASE: I-130 / I-485

APPLICANT: Filipino

LOCATION: Nevada

ISSUES: Immigrant Intent

Our client was married to a U.S. Citizen before she entered the United States as a tourist. On her last entry, she intended to visit and spend Christmas with his husband, and then come back to the Philippines and get petitioned over there. She even had her return ticket. When she was at the port of entry in Las Vegas, she was inspected and admitted as a tourist, and she was honest in telling the officer that she was visiting her husband. No other questions and she was let in. After a few months with her husband, they both decided to pursue adjustment of status here and first consulted with our firm. We informed them prior to retention that immigrant intent will be the major issue. We had to prove despite her marriage in the Philippines before entry on a tourist visa that her intent on that last entry was to visit, and not to eventually immigrate. They understood and were firm on their case – the beneficiary really did not intend to immigrate when she last entered the U.S. Our firm was retained pro bono and the I-130 Petition and I-485 Adjustment of Status application were filed. Within 60 days our client got her work permit. Prior to their interview, our firm prepared both husband and wife for the interview. We focused on the bona fide marriage and immigrant intent issues. On August 18, 2010, both were interviewed at the Las Vegas CIS office. They both did well and the officer gave our client a stamped approval at the conclusion of the interview. She will receive her green card in a week.

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CASE: I-751 Late Filing For Good Cause Approval
ISSUES: Late Filing; Establishing Good Cause for Failure to File
LOCATION: Boston, Massachusetts

Our client is a Filipino national living in Boston who was on a 2-year conditional green card. She got her green card based on a bona fide marriage with her U.S. Citizen husband. She and her husband jointly filed an I-751 to remove conditions on a green card prior to its expiration in July 2009. This was in order to get her 10-year green card. However, as they were not represented by counsel, she missed the requirement of having to  provide the biometrics fee for her daughter, who was also a conditional resident as a derivative. In early August 2009, after the expiration date of the 2-year conditional green card, the application was returned since they missed the biometrics fee. Since the letter appeared to only request for the fee, they responded  and re-filed the application with the addition of the requested biometrics fee without any explanation for the “late filing”. As mentioned, the conditional residence status expired in late July. The checks were cashed and they were eventually issued with a receipt notice and fingerprint appointment. Everything it seemed went well as they received letters from the Immigration Service stating that their status was extended for a year while the I-751 was pending. However, in January 2010, the I-751 was denied due to “late filing”. Our office was consulted after this and we suggested a re-file of the I-751 with a letter and supporting documents arguing that there was good cause for failure to file. We argued that the August 2010 letter appeared to be a Request for Evidence and that it is reasonable for a couple with no legal representation to think there was no need to provide an argument for “late filing” when they re-filed the I-751. We also attached proof of bona fide marriage and cited the specific law which allows for this late filing. On June 27, 2010, the I-751 was finally approved and our client’s 10-year green card was issued.

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CASE: Adjustment of Status Based on Marriage
NATIONALITY: Filipino
LOCATION: Ohio

Our client is a Filipino national who came to the U.S. on an tourist visa back in 2002 and overstayed. On August 2003 he married a permanent resident. A petition was filed for her however since he was not a citizen yet, she could not apply for her green card. In the meantime to support herself she did various work, from hair and beauty to cleaning. Eventually her husband became a U.S. Citizen and she retained our office for her adjustment of status. One of her issues was that she was caught speeding and beating the red light on separate occasions, which led to Driving Without a License arrests and charges. She did not have the records nor any recollection of the disposition on those cases, nor did she know how many she had.  An immigration provision may make her ineligible for a green card with 3 Driving Without a License convictions. However, “Traffic Violations” do not make a green card applicant inadmissible. So our office obtained the court documents for our client, making phone calls and going all the municipal courts that adjudicated her case. Upon reviewing the documents, we deemed these were indeed traffic violations that should not prevent her from obtaining a green card.  She also only had one conviction for the no license charge as the others were dismissed. The green card application was filed in February 18, 2010. To avoid delays and potential Requests for Evidence, we included the traffic records with a notation that they were only traffic records which should not be an issue and that the others were dismissed. The case indeed did not have any delays nor Requests for Evidence, and our client was scheduled for her interview in May 27, 2010. Prior to the interview, despite the marriage petition already approved, our office prepared both the client and her US Citizen husband in case both are interviewed. Note that the I-485 interview notice did not stipulate that the husband would also be interviewed.  At the interview in Cleveland, the officer actually interviewed both the husband and the wife, and asked them questions on separate occasions regarding the validity of the marriage. It was a good thing they were both prepared. The interview thus went smoothly. On June 7, 2010, 10 days after the interview, and 8 years after she first arrived in the United States, our client finally received her green card.

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CASE: Termination of Removal Proceedings for Adjustment of Status With CIS
NATIONALITY: Spanish
LOCATION: San Diego, California

Our client is a Spanish national who came to the U.S. on an R-1 Visa. She resides in San Diego, California. Prior to retaining our firm, she tried to apply for a change of non-immigrant status, got denied, was placed in removal proceedings, married a U.S. Citizen, and filed an I-130 petition and an I-485 green card application simultaneously. She already went to the San Diego Immigration Court several times while the petition was pending. She did not have an attorney and did not know procedurally what to do. Eventually the I-130 marriage petition was approved, however, at the green card interview, the officer told her that they did not have jurisdiction over her case. The green card application was administratively closed. She consulted with our firm on what to do next as she was confused. She had another hearing coming up with the San Diego Immigration Court. We explained that we can terminate removal proceedings and reopen her green card application. Our office was retained and within a few days, we filed a Motion to Terminate with the Immigration Court. The Motion was granted within two weeks. We then wrote a letter to the Chula Vista, CA CIS to reopen our client’s adjustment of status application. Within a few weeks, another green card interview was scheduled for our client. She went to the interview, passed it, and eventually obtained her permanent resident card.

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