GTHOMAS
Sat, Aug 18, 2018

Appeals & Motions to Reopen

Has your case been denied by the Immigration Judge or USCIS?

Our persuasive writings along with addressing the proper issues on appeal have guaranteed our clients success to remand their cases back and obtain legal residency.

In fact, our office had three landmark published opinions at the Ninth Circuit Court of Appeals: Viridiana v. Holder, Sumolang v. Holder and Chandra v. Holder.

Our office has also won many motions to reopen before the Immigration Court and the Board.

Appeals – Board of Immigration Appeals (“Board” or “BIA”)

The Board of Immigration Appeals (“Board” or “BIA”) is part of the Department of Justice. It reviews decisions made by both the Immigration Judges and USCIS. The Board is located in Falls Church, Virginia. The notice of the appeal must be received at the Board’s office no later than thirty (30) days from the order entered by either the Immigration Judge or the USCIS officer. The Board may take months before an appeal is adjudicated. Most appeals are reviewed by a single Board Member. If you assert that your appeal warrants review by a 3 - Member Board Panel, you may identify the specific "Factual or legal basis for your contention".

If a decision is rendered favorably, the Board remands the case back to either the Immigration Court or the USCIS with specific instructions. The Board may grant relief and request that security background check be completed for the grant of relief. Other times, the Board may remand back to the Immigration Judge to conduct further evaluation of the case and enter a new decision.

If the appeal is dismissed, the Board will notify the appellant and his attorney. The Board’s decision will apprise the appellant for the basis of the dismissal. The appellant may file a federal appeal with the Federal Appellate Courts to review the legal issues again.

FEDERAL APPELLATE REVIEW

The Ninth Circuit Court of Appeals has jurisdiction over cases completed in the following States: Arizona, California, Nevada, Oregon, Idaho, Montana and Washington.

The Ninth Circuit is located in San Francisco, California.

The appeal to the Ninth Circuit or any federal appellate body is called a Petition for Review. The petition for review must be filed with the Court within 30 days of the decision of the Board of Immigration Appeals. Untimely petitions are dismissed by the Court. Thus, it is extremely important that the appeal is effectuated in a timely manner. There are fees associated with the Petition for review. Please see the Federal Appellate Court web site for fees associated with the petition for review.

Filing a petition for review of a removal order does not automatically stay the petitioner’s removal from the United States. INA § 242(b)(3), 8 U.S.C. § 1252(b)(3). However, the Courts of Appeals may issue a judicial stay of removal to prevent U.S. Immigration and Customs Enforcement (ICE) officers from deporting a person while his/her petition for review is pending before the court. In Nken v. Holder, 556 U.S. 418, 434 (2009), the Supreme Court instructed courtsto adjudicate stay motions by applying the traditional standard for a stay.

Under this standard, the court considers the following four factors:

  1. whether the stay applicant has made a strong showing that he/she is likely to succeed on the merits;
  2. whether the applicant will be irreparably injured absent a stay;
  3. whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
  4. where the public interest lies.

Our office has a pride to state that it has won, almost all, of its motions to stay for its clients before the Ninth Circuit Court of Appeals pending the Court’s review. Further, our office had three landmark cases of first impression helping the immigrate community:

Fraud by an Immigration Consultant

Viridiana v. Holder, 646 F.3d 1230 (9th Cir. 2011), our office has won an untimely asylum for an alien defrauded by an immigration consultant. In this case, the Court rejected the Board’s interpretation of the Matter of Lozada and held that fraud by a consultant may constitute an exceptional circumstances warranting a waiver from the one year deadline required for filing asylum applications.

Harm to a Child Extending Asylum to a Parent

Sumolang v. Holder, 723 F.3d 1080 (9th Cir. 2013), our office has won a victory for a parent, who was able to obtain asylum solely based on the harm to her own child. The court rejected the Immigration Judge and the Board’s interpretation that harm to a family member could not extend to an applicant seeking withholding of removal.

Motion to Reopen – Removal Order

Chandra v. Holder, (10-70029)(9th Cir. 2004), our office has won a victory to a person, who was ordered removed from 2002. The Court reopened his removal proceedings and stayed his removal and allowed him to present evidence material to his asylum claim based on his personal change circumstances, as it relates also to worsening conditions in his home country.

Our office has represented many people before the Ninth Circuit for the past 14 years. We have an exceptional record in wining our petitions for review because of our dedication to our client legal issues and our exceptional writing abilities.

MOTION TO REOPEN AND MOTION TO RECONSIDER

Motions to reopen and motions to reconsider may be filed in the immigration court and the Board of Immigration Appeals. Motions to reconsider ask the court to reconsider a possible error in fact or law from a previous decision. Motions to reopen ask the court to consider new evidence that was not available before. Both motions have strict filing deadlines – the motion to reconsider must be filed within 30 days of a final judgment and the motion to reopen must be filed within 90 days of a final judgment. However, there are exceptions and even if your case has been decided years ago, there may be a way to get your case reopened.

Motions to reopen are a key component of the office business. If you received a deportation order many years ago and you are still in the United States and you now have some type of relief (such as marriage to a U.S. citizen), you must reopen your removal proceeding before you can get your green card. The office prides itself on its motions to reopen, especially when the case has been closed for many, many years. We have reopened cases where there was no hope and where other firms had failed. It is a big risk for you to spend thousands of dollars on an attorney to reopen your case because you really only have one chance to get it right. Make sure you have an experienced attorney who knows what he is doing so you do not have to spend more money on a second attorney to fix the errors of your first attorney, which may not be fixable.

Call Us for an Appointment (888) 876 7539

Family Petitions

Permanent Residence / Green Card

FAMILY-BASED / IMMEDIATE RELATIVE PETITIONS

A U.S. citizen or LPR may petition for his or her children (under 21 years), spouse and parents. Once the I-130 Immediate Relative petition is approved, the relative may adjust status to become a legal permanent resident. If the immediate relative is in the US, they may filed for an adjustment of status along with the appropriate fees. If the immediate relative is outside the United States, the immigrant petition is processed through the consular processing

BATTERED SPOUSE/CHILD

he VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and certain spouses and children of permanent residents (Green Card holders) to file a petition for themselves, without the abuser's knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.
 
The VAWA provisions, which apply equally to women and men, are permanent and do not require congressional reauthorization.

Help is also available from the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental health care, legal advice and other types of assistance, including information about filing for immigration status. For more information, visit the National Domestic Violence website.

Those Eligible to File

  • Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also file as an abused spouse if your child has been abused by your U.S. citizen or permanent resident spouse.  You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.

  • Parent: You may file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter.

  • Child: You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may also file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.

Eligibility Requirements for a Spouse

  • Qualifying spousal relationship:

    • You are married to a U.S. citizen or permanent resident abuser or

    • your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or

    • your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or

    • you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.

  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:

    • You have been abused by your U.S. citizen or permanent resident spouse, or

    • your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.

  • You entered into the marriage in good faith, not solely for immigration benefits.

  • You have resided with your spouse.

  • You are a person of good moral character.

Eligibility Requirements for a Child

  • Qualifying parent/child relationship:

    • You are the child of a U.S. citizen or permanent resident abuser, or

    • you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.

  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.

  • You have resided with your abusive parent.

  • You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character. 

Eligibility Requirements for a Parent

  • Qualifying parent/son or daughter relationship:

    • You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or

    • you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or

    • you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.

  • You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.

  • You have resided with the abusive son or daughter.

  • You are a person of good moral character. 

Filing Process

  • You must file the form with the Vermont Service Center (VSC).

  • If you are living abroad at the time of filing the self-petition, you may file Form I-360 if:

    • the abuser is an employee of the U.S. government,

    • the abuser is a member of the uniformed services, or

    • you were subjected to battery or extreme cruelty in the United States.

  • If you are a self-petitioning spouse or child and you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice) valid for 150 days that you can present to government agencies that provide certain public benefits to certain victims of domestic violence.

  • If your Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant  is approved and you do not have legal immigration status in the United States, we may place you in deferred action, which allows you to remain in the United States

Working in the United States

If you have an approved Form I-360, you are eligible to apply to work in the United States.  In addition, if you have an approved Form I-360 and have been placed in deferred action, you are eligible to apply to work in the United States. To apply to work in the United States, you must file the Form I-765, Application for Employment Authorization, with the Vermont Service Center. 

Your children listed on your approved Form I-360, may also apply for work authorization. For more information on working in the United States, visit our Working in the U.S. page.

Permanent Residence (Green Card)

If you have an approved Form I-360, you may be eligible to file for a green card. If you are a self-petitioning spouse or child, your children listed on your approved Form I-360 may also be eligible to apply for a green card.

FAMILY-RELATED VISAS FOR FINANCEE, SPOUSE AND CHILDREN

K-1 Visas are for the finace(e)s of U.S. Citizens. The fiancée must seek to enter the U.S. solely to conclude a valid marriage with the petitioner. The couple must marry within 90 days after the fiancee’s entry. Any minor children of the fiancée may accompany the fiancée to the U.S. with K-2 visas.

The fiancé(e) K-1 nonimmigrant visa is for the foreign-citizen fiancé(e) of a United States (U.S.) citizen. The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The foreign-citizen will then apply for adjustment of status to a permanent resident (LPR) with the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). Because a fiancé(e) visa permits the holder to immigrate to the U.S. and marry a U.S. citizen shortly after arrival in the United States, the fiancé(e) must meet some of the requirements of an immigrant visa. Eligible children of K-1 visa applicants receive K-2 visas.

What Is a “Fiancé(e)”?

Under U.S. immigration law, a foreign-citizen fiancé(e) of a U.S. citizen is the recipient of an approved Petition for Alien Fiancé(e), Form I-129F, who has been issued a nonimmigrant K-1 visa for travel to the United States in order to marry his or her U.S. citizen fiancé(e). Both the U.S. citizen and the K-1 visa applicant must have been legally free to marry at the time the petition was filed and must have remained so thereafter. The marriage must be legally possible according to laws of the U.S. state in which the marriage will take place.

In general, the foreign-citizen fiancé(e) and U.S. citizen sponsor must have met in person within the past two years. USCIS may grant an exception to this requirement, based on extreme hardship for the U.S. citizen sponsor to personally meet the foreign-citizen fiancé(e), or, for example, if it is contrary in the U.S. citizen sponsor’s or foreign-citizen fiancé(e)’s culture for a man and woman to meet before marriage.

K-3 Visas are for persons who have valid marriages to U.S. citizens, where the U.S. citizen has filed an I-130 petition on the person’s behalf and the person wishes to enter the U.S. to await the approval. If the I-130 is denied, the authorized admission under K-3 terminates 30 days after the denial. The K-3 visa includes minor children of the beneficiary.

If you are married to a U.S. citizen and have decided not to go through the whole immigrant visa application process while you are overseas, but instead plan to use the alternate, K-3 visa for U.S. entry, to be followed by a green card application in the United States.

Obtaining a K-3 nonimmigrant visa involves six major steps:

  1. The U.S. citizen spouse submits a visa petition (Form I-130) to a USCIS “lockbox” office in the United States. That office will forward the petition to a USCIS Service Center. If the immigrant has children immigrating with him or her, the U.S. citizen spouse should also submit separate visa petitions on their behalf as well. To do so, the U.S. spouse must qualify as the child’s parent or stepparent, and can be their stepparent only if your marriage took place before the child’s 18th birthday. Separate visa petitions will be required for each child when it comes time to adjust status (apply for a green card), so the sooner you get them in, the better, particularly if the child is likely to turn 21 before the process ends.
  2. After the U.S. citizen receives an I-797 receipt notice for the I-130, he or she submits a separate, “fiancé” visa petition (Form I-129F) to the USCIS Service Center from which the I-130 receipt came.
  3. After USCIS approves Form I-129F, it sends word to the National Visa Center (NVC), which conducts some preprocessing procedures, and then transfers the case to the appropriate U.S. consulate. (But here's where the process may not go as planned -- if USCIS approves the I-130 before the I-129F, it will transfer that approval to the NVC first, in which case the file will be treated as an immigrant visa application, and the I-129F will be subsequently ignored.)
  4. After receiving the case files, the consulate sends the immigrant instructions about forms to fill out and documents to prepare, and ultimately schedules the immigrant for an interview appointment. Soon after the interview, the immigrant should be approved for your the visa -- either a K-3 or, more likely, an immigrant visa. (Children, if any, will get derivative visas.)
  5. The immigrant presents the visa (either K-3 and K-4s, if there are children, or immigrant visas, if this is the way it played out) at a U.S. airport, border, or other port of entry. They are examined by an officer of Customs and Border Patrol (CBP). Assuming everything is in order, the immigrant will be admitted to the United States.
  6. After arrival, an immigrant who entered as a K-3 will be expected to apply for adjustment of status in the United States. This involves submitting Form I-485, with supporting forms and documents, to USCIS by mail. Among the more important supporting documents is the Form I-864 Affidavit of Support, which the petitioner must fill out to show sufficient financial capacity to ensure that the immigrant will not have to rely on need-based public assistance. The immigrant will also need to undergo a medical exam and submit the report with the application. After the adjustment application is received by USCIS, it will schedule the immigrant for fingerprinting, and later schedule the couple for a green card interview. There, the case will be approved (or denied).

In rare instances, USCIS will also ask your spouse to attend a “fraud interview” if USCIS or the consulate has doubts about whether your marriage is the real thing. This could happen as part of Step One or after Step Four.

How long this entire process of getting you into the U.S. takes, if you do somehow get a K-3 rather than an immigrant visa, depends mostly on how long it takes for the I-129F visa petition to be approved. This can be many months by itself. After that, expect another six weeks or so to get your consular instructions, and, assuming you send your forms back in right away, another six weeks or so for you to get your appointment.

The key thing to understand is that if the I-130 petition is approved before the consular interview and the approval paperwork gets forwarded to the consulate, the immigrant is no longer eligible for a K-3 visa, and will have to go through the entire immigrant visa application process overseas. (The concept behind the K-3 visa was to compensate for the delays experienced by married couples as they wait for approval of their Form I-130.) That can be a good thing: You will not have to submit a whole separate application to adjust status and get a green card after you are in the U.S., but can obtain an immigrant visa at the consulate, which makes you a permanent resident the minute you enter the United States.

Call Us for an Appointment (888) 876 7539

Helpful U.S. Immigration Links

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Here you will find many helpful links to the U.S. Department of Homeland Security Citizenship & Immigration Services.