CASE: Adjustment of Status in Removal Proceedings / Administrative Closure
CLIENT: Filipinos
LOCATION: Charlotte, NC (EOIR) / Charleston, SC (USCIS)
Our clients came to the United States in November 2011 with K-1 and K-2 visas from the Philippines (mother and four children).
In 2005, our clients adjusted status in the United States and became green card holders. However, in January 2011, the DHS issued a Notice to Appear against our clients. The NTA alleged that the mother’s marriage to her U.S. citizen husband (they divorced in 2006) was fraudulent, and so the allegations made them removable from the United States. They were placed in deportation proceedings at the Charlotte Immigration Court.
Once the NTAs were issued, our client’s family contacted our office for legal assistance and retained our office on February 16, 2011.
On May 2, 2011, Attorney Sung Hee (Glen) Yu from our office represented our client and her family members at their initial master calendar hearings at the Charlotte Immigration Court.
Mr. Yu first denied some of alleged factual allegations on their NTAs and requested a removability hearing.
Before that hearing, the government submitted their evidence to prove removability. It was substantial, with multiple exhibits and several proofs that made it extremely hard for all of our clients to overcome removability. In August 2011, the removability hearing was held, but due to the evidence presented by the government, which included email correspondence by Respondent as submitted by her ex-husband, the Immigration Judge found the mother removable under the alleged fraud charge.
The mother’s case as she knew was weak, but she explained to us beforehand that she wanted to save her four children. She just wanted them to remain in the US and preserve their future. She worked hard to support them here.
We argued that the mother’s fraud should not be imputed to her children. After testimony and closing, our client’s mother was granted for Voluntary Departure and she eventually complied with the court’s order. More importantly, the court also dropped all fraud charges for all her kids. That was huge.
Our client (the eldest daughter) then married her U.S. Citizen husband in February 2011. Our client’s husband filed an I-130 petition on behalf of our client in August 2011, and this I-130 petition was approved by the USCIS Charleston Field Office in February 2012. Once her I-130 was approved, our office informed the Court and sought adjustment of status based on this I-130 petition. Her siblings sought a waiver under INA Section 212(k) as well and the Immigration Judge found that they were eligible to file this waiver.
After several hearings in between, the 7th hearing came up – the individual hearing.
On March 4, 2013, Attorney Glen Yu represented our clients at their Individual Hearing. One of them for adjustment of status. The three other children had borderline cases with no immediate relief, and the best thing for them was administrative closure, in which they get to stay and work in the United States.
Our office and the DHS communicated with each other, and both moved for administrative closure for our the three siblings.
On March 4, 2013, the Immigration Judge granted our joint motion and administratively closed the three sibling’s cases.
For the eldest sister, during the adjustment of hearing, there were the direct and cross examinations regarding her adjustment of status application. Eventually, the Immigration Judge approved our client’s adjustment of status relief. Our client’s removal proceedings were terminated simultaneously. After seven hearings, our client is finally a green card holder while her siblings all got their deportation cases administratively closed.
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CASE: Motion to Reopen / I-130 approval / Termination of Proceedings
CLIENT: Moldovan
LOCATION: Baltimore, MD (EOIR) / Fairfax, VA (USCIS)
Our client came to the United States from Moldova in 2008 with her ex-husband. While they were residing at the Baltimore area, her ex-husband filed an asylum application to the USCIS. Our client was a derivative applicant for this asylum application. Later this case was referred to the Baltimore Immigration Court and removal proceedings were initiated against our client and her ex-husband. While this asylum application was pending at the Immigration Court, our client and her ex-husband got a divorce due to marital difficulties. Her previous immigration lawyer filed a Motion to Deconsolidate, but our client never got a response from her previous attorney nor the Court regarding the possible deconsolidation.
Her individual hearing was scheduled in May 2011, but she was not informed of this date. She later learned that she had a final order of removal because of her absence from her ex-husband. Once she learned about that, she contacted our office for legal assistance. We advised her that we can file a Motion to Reopen in absentia order of removal based on exceptional circumstances. She retained our office on August 15, 2011.
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 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 August 18, 2011, our office filed the Motion to Reopen with the Baltimore 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 her medical appointment on the day of hearing, the last address she provided to the immigration service and to the Immigration Court prior to the final order date, and other supporting documents were submitted (12 exhibits). Eventually, on September 23, 2011, the Baltimore Immigration Court granted our motion and reopened our client’s case.
Our client’s divorce was finalized on August 11, 2011. After her case was reopened, she married her current U.S. citizen husband in July 2012. Her U.S. citizen husband filed an I-130 petition on behalf of our client on August 16, 2012 with our legal assistance and they appeared at the I-130 interview on December 18, 2012 at the Fairfax, VA USCIS Field Office. Prior to the interview, our office thoroughly prepared our client and her husband for the interview. Although the interview was intensive, on January 9, 2013, the I-130 petition is approved.
After the I-130 was approved, our office filed a Motion to Terminate proceedings with an attached I-485 application and its supporting documents on January 30, 2013. On February 13, 2013, our client appeared at the Baltimore Immigration Court for her initial master calendar hearing after the reopening of her case. Attorney Sung Hee (Glen) Yu from our office represented our client at the hearing and sought termination before Immigration Judge. The Immigration Judge granted our Motion to Terminate and eventually terminated our client’s case without prejudice on the same day. Now, she can file her I-485 adjustment of status application with USCIS to obtain her green card.
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CASE: Termination of Removal Proceedings Based on Approved I-130 Petition
CLIENT: Filipina
LOCATION: Cleveland, Ohio
Our client is from the Philippines who came to the U.S. on a B-2 Visitor’s Visa in March 2009. She remained in the United States after her authorized stay expired. Because of her overstay, she was placed in removal proceedings in Cleveland, Ohio.
Our client married her U.S. citizen husband in April 2011 in Ohio. Her husband filed an I-130 petition on her behalf after they got married. Eventually, our client’s I-130 petition was approved in June 2012. Unfortunately, after being in Court prior to our retention about 4 to 5 times, she could not get her case terminated.
She contacted our office around September 2012 to seek legal assistance. She retained our office in October 1, 2012.
After our office was retained, we prepared and filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents to the Cleveland Immigration Court. The DHS counsel in Cleveland agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on February 5, 2013. Now, she can file her I-485 adjustment of status application to USCIS to obtain her green card.
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CASE: Termination of Removal Proceedings with an Approved I-130 Petition
CLIENT: Chinese
LOCATION: Cincinnati, Ohio (USCIS) / Cleveland, Ohio (EOIR)
Our client is a Chinese citizen who came to the U.S. on a B-2 Visitor’s Visa in December 2005. She remained in the United States after her authorized stay expired. Because of her overstay, she was placed in removal proceedings, which was initiated at the Los Angeles Immigration Court in California.
Our client married his second husband in December 2011 in Ohio. She initially contacted our office for a Change of Venue to Cleveland. She retained our office on January 12, 2012.
We then filed a Motion for Change of Venue from Los Angeles to Cleveland on behalf of our client. The Immigration Judge granted the Motion and her case was transferred to the Cleveland Immigration Court.
Our office then prepared and filed an I-130 Petition with a lot of bona fide marriage evidence on January 26, 2012. The petition also included a bona fide marriage exception letter.
While the I-130 petition was pending, our client appeared at the Cleveland Immigration Court on January 25, 2012 for her initial master calendar hearing. Attorney Sung Hee (Glen) Yu from our office represented her 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 scheduled on October 29, 2012 at the Cincinnati USCIS Field Office. Prior to the interview, our office thoroughly prepared our client and his husband for the interview. Attorney Yu also accompanied them at their interview. The interview lasted one hour, our clients were separated, but the I-130 petition was eventually approved on December 8, 2012.
After the I-130 was approved, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on February 12, 2013. Now, she can file her I-485 adjustment of status application to USCIS to obtain her green card.
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CASE: Motion to Terminate Removal Proceedings Based on Criminal Conviction Dismissal
CLIENT: Croatian
LOCATION: Cleveland, OH
Our client is a Croatian citizen and who has been a green card holder in the United States for more than 10 years. His parents and sister are all US Citizens.
However, he was placed in removal proceedings in July 2012 due to his previous criminal convictions, specifically drug-related offenses. He had two possession of drug paraphernalia convictions, a conviction for drug abuse due to heroin, and a marijuana conviction. He was thus removable due at least one controlled substance violation.
He was picked up by ICE officers and was detained. Our client’s family member contacted us in early August to seek legal assistance and representation at his removal proceedings. Our office was retained on August 3, 2012.
Based on his removable charges, there was no available relief for our client except relief under the Convention Against Torture (CAT). Respondent wished to apply for CAT.
We then asked our client whether he was advised before he pled guilty for his charges at his previous criminal hearings. Our client told us that he did not receive any advisement as required by Ohio criminal statutes.
Under Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), the BIA held that “If a court with jurisdiction vacates a conviction based on a defect in underlying criminal proceedings, the Respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A).”
According to O.R.C Section 2943.031, the court must ask the following before the defendant entered the plea: “If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”
As stated above, our client told us that he never had the aforementioned advisement from the court before he pled guilty to his charges. Thus, we contacted our client’s previous criminal attorney to file Motion to Withdraw Guilty Plea and Vacate Conviction based on a defect in underlying criminal proceedings – that of having a lack of advisement or lack of substantial compliance with the advisement provisions of O.R.C. Section 2943.031 from the criminal courts.
By November 9, 2012, the courts involved vacated and dismissed the two drug paraphernalia convictions and the heroin / drug abuse conviction. He thus only has one conviction for marijuana possession left. There was no evidence that the amount of marijuana involved was over 30 grams.
With that, our office filed a Motion to Terminate Proceedings to the Immigration Court and argued that our client is not removable anymore because the respective courts have vacated his plea and dismissed his convictions based on a defect in underlying criminal proceedings. We cited the law that provides that he is not removable based on a single conviction of marijuana possession if the amount involved is 30 grams or less. Since it’s the government’s burden to show removability, and since there was no evidence of the amount of marijuana involved, despite this conviction he was not removable anymore.
We included the criminal court judges’ orders and other supporting documents, including, when necessary, a certified copy of the motion filed by the criminal attorney (the government sometimes wants to see this to make sure the dismissal was not for immigration purposes, but based on a lack of advisement) and argued that our client’s removal proceedings must be terminated.
On November 28, 2012, on the day of our client’s Individual Hearing, the Immigration Judge granted our Motion to Terminate Proceedings.
Our client is now released. He got his green card back and can continuously reside in the United States.
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CASE: Adjustment of Status / Termination of Removal Proceedings with an Approved I-130 Petition
CLIENT: Chinese
LOCATION: Cleveland, Ohio (EOIR) / Columbus, Ohio (USCIS)
Our client is a Chinese citizen who came to the U.S. on a B-2 Visitor’s Visa in June 2010. She remained in the United States after her authorized stay expired. Because of her overstay, she was placed in removal proceedings, which was initiated at the San Francisco Immigration Court in California.
Our client married his second husband in December 2011 in Columbus Ohio. She initially contacted our office for a Change of Venue to Cleveland. She retained our office on October 20, 2011. We then filed a Motion for Change of Venue from San Francisco to Cleveland on behalf of our client. The Immigration Judge granted the Motion and her case was transferred to the Cleveland Immigration Court.
Our office then prepared and filed an I-130 Petition with a lot of bona fide marriage evidence on December 9, 2011. The petition also included a bona fide marriage exception letter.
While the I-130 petition was pending, our client appeared at the Cleveland Immigration Court on April 11, 2012 for her initial master calendar hearing. Attorney Sung Hee (Glen) Yu from our office represented her 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 scheduled on June 19, 2012 at the Columbus USCIS Field Office. Prior to the interview, our office thoroughly prepared our client and his husband for the interview. Attorney JP Sarmiento also accompanied them at their interview. The interview lasted one hour, our clients were separated, 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 an attached I-485 application and its supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings. Eventually, the Immigration Judge granted the Motion to terminate without prejudice on August 15, 2012.
After her case was terminated with the Immigration Court, our office prepared and filed the I-485 Adjustment of Status Application on September 4, 2012, together with other necessary forms and supporting documents. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients over the phone.
On November 15, 2012, our client was interviewed at the Baltimore CIS office. Our client was fully prepared and the interview went well. On the same day, her green card application was approved.
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CASE: Termination of Removal Proceedings Based on Approved I-130 Petition
CLIENT: Indonesian
LOCATION: Cleveland, Ohio
Our client came to the U.S. on 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 the 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. After 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.
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).
Our client’s I-130 interview was scheduled on July 23, 2012 at Cleveland USCIS Field Office. Prior to the interview, our office thoroughly prepared our client and his wife for the interview. Attorney Sarmiento also accompanied them for their interview. The I-130 petition was eventually approved the next day.
After the I-130 was approved, our office filed a request to join in a Motion to Terminate proceedings with a copy of the I-485 application and supporting documents. The DHS counsel in Cleveland agreed to terminate our client’s proceedings at our client’s Master Calendar hearing on November 7, 2012. Ultimately, the Immigration Judge granted the Motion to terminate without prejudice. Now, he can file his I-485 adjustment of status application to USCIS for his green card.
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CASE: Motion to Terminate Removal Proceedings Based on an Approved I-130 Immediate Relative Spousal Petition
CLIENT: Ghanaian
LOCATION: Phoenix, AZ
Our client is a Ghanaian citizen who came to the U.S. on a B-2 Visitor Visa in 2004. Our client overstayed and worked illegally after, and was thus placed in removal proceedings. He missed Court, and he had a final order of removal in absentia at the Arlington Immigration Court, but his case was reopened after our office’s successful Motion to Reopen in April 2012.
Our client and his wife married in August 2007 in Arizona. They had two U.S. citizen children. Prior to filing the Motion to Reopen, our office filed an I-130 petition based on our client’s marriage to his U.S. citizen wife. The I-130 petition was filed on March 5, 2012.
Generally, if someone is a beneficiary of an I-130 petition while he or she is in removal proceedings, the USCIS schedules what’s called a Stokes interview, in which both husband and wife are interviewed separately for intensive questioning. This is to make sure the marriage is in good faith, and not entered into for the purpose of avoiding deportation.
The I-130 petition we filed though included various supporting documents which demonstrated the bona fide nature of our client’s marriage. We also emphasized the fact that they have been married for 5 years and have two U.S. citizen children. As a result, the USCIS approved the I-130 petition for our client without requesting an interview at the local office. The I-130 was actually approved the day before his scheduled Master Hearing in Phoenix, AZ.
After the I-130 was approved, our office filed a Motion to Terminate Removal Proceedings with the I-485 application and supporting documents to the Phoenix Immigration Court. The DHS counsel in Phoenix did not oppose the Motion to Terminate. Ultimately, the Immigration Judge granted the Motion to Terminate without prejudice on October 9, 2012. Our client is not in removal proceedings anymore. Now, he can file his I-485 adjustment of status application to the USCIS to obtain his green card.
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CASE: Motion to Terminate Removal Proceedings Based on an Approved I-130 Immediate Relative Spousal Petition
CLIENT: Senegalese
LOCATION: Baltimore, MD
Our client is a Senegalese citizen who came to the U.S. on an F-1 Student Visa in August 2006 to study at a college in Maryland. As our previous success story explained, our client had a final order of removal in absentia, but his case was reopened after our office’s successful Motion to Reopen in January 2012.
Our client and his wife married in October 2010, and retained our office on March 3, 2011. Our office immediately filed an I-130 Petition with bona fide marriage evidence on March 23, 2011. While the I-130 petition was pending, our client appeared at the Baltimore Immigration Court on February 15, 2012 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 scheduled on May 4, 2012 at Baltimore USCIS Filed Office. Prior to the interview, our office thoroughly prepared our client and his wife rough conference call. Attorney Yu also accompanied them for their interview. The interview lasted more than one hour, but the I-130 petition was eventually approved on the same day.
After the I-130 was approved, our office filed a Motion to Terminate Removal Proceedings with the I-485 application and supporting documents to the Baltimore Immigration Court. The DHS counsel in Baltimore did not oppose the Motion to Terminate Removal Proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate Removal Proceedings without prejudice. Our client is not in removal proceedings anymore. Now, he can file his I-485 adjustment of status application to USCIS to obtain his green card.
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CASE: Termination of Removal Proceedings with an Approved I-130 Petition / I-485 under the INA 245(i) provision
CLIENT: St. Lucian
LOCATION: New York, NY
Our client is from St. Lucia who came to the U.S. on a B-2 visitors visa in December 2003. Since that time, she never left the United States. Because of her overstay, removal proceedings was initiated against her in September 2010.
In May 1986, our client’s aunt filed an I-130 (fourth preference) petition for her father. This I-130 petition was approved in August 1986. At the time the I-130 Petition was approved, our client was a minor and was a derivative beneficiary. Later, our client’s father filed an I-130 petition on behalf of our client in February 1998. This Petition was approved in November of that year.
Our client contacted us around December of 2010 for consultation and sought legal assistance for her removal proceedings. After the consultation, we determined that she is eligible for adjustment of status under INA 245(i). Our client retained us on January 13, 2011.
Section 245(i) of the INA allows certain foreign nationals to become permanent residents of the United States despite entering without inspection (EWI) or overstaying (if beneficiary of petitions filed not by an immediate relative). Immigrants are barred from adjusting their status if they entered the United States without first being inspected and admitted by a Customs and Border Patrol officer and if they have either failed to maintain lawful status or been unlawfully employed in the country, with certain exceptions. Section 245(i) was first added to law in 1994 to allow certain people who otherwise would not be eligible to adjust their status to be able to do so upon payment of a $1,000 fine.
Four years later, on January 14, 1998, Congress phased Section 245(i) out of law. Immigrants and their families who had already begun the process of changing their status under Section 245(i) by January 14, 1998 were grandfathered into the section’s benefits. However, this left thousands of otherwise qualified persons who had not begun the process unable to adjust status in the United States. They could not return to their countries to begin the legal process of obtaining their permanent residency in the United States also without being subject to either a three- or a 10-year bar upon returning to the United States.
On December 21, 2000, Congress extended the qualifying date for Section 245(i) benefits to April 30, 2001. This law allowed immigrants who had labor certifications or visa petitions filed on their behalf between 1998 and April 30, 2001, to qualify for adjustment of status. Those who were beneficiaries of petitions filed prior to January 14, 1998 could still adjust despite an EWI record, and those people do not have to meet the December 2000 physical presence requirement.
Our client was the beneficiary of her father’s petition in February 1998, which is current, but this by itself would not have allowed her to adjust status since this was filed after January 1998 and because she came in 2003, thus not meeting the December 21, 2000 physical presence requirement. However, she was also the beneficiary of a petition filed before January 14, 1998, that of her aunt’s petition for her father. So it was two petitions that saved her case, one for 245i, and the other for adjustment eligibility.
Once retained, our office promptly filed a Motion to Change Venue from Buffalo to New York. This was granted and on April 1, 2011, our office filed a request to join in a Motion to Terminate proceedings with an attached I-485 application and its supporting documents. The DHS counsel in New York agreed to terminate our client’s proceedings. Ultimately, the Immigration Judge granted the Motion to Terminate without prejudice on August 17, 2011.
Once her case was terminated, the USCIS New York scheduled an I-485 interview for our client. Prior to the interview, we thoroughly prepared our client through conference call. On May 1, 2012, our client was interviewed at the New York City USCIS office. Attorney JP Sarmiento accompanied her at the interview as well. Due to the complexity of the case, we made sure the officer was clear about our client’s 245i eligibility. On May 30, 2012, our client’s I-485 application was approved. She finally became a green card holder.
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