Asian Journal- The Filipino-American Community Newspaper

QUESTION: When is the alien’s last chance to avoid removal from the United States?

Answer: When an alien is in removal proceedings in Immigration Court, there are various reliefs available. This include asylum, adjustment of status, cancellation of removal and waivers. In many cases, an application for asylum is denied by the Immigration Judge. The alien may file an appeal with the Board of Immigration Appeals (BIA) and if the denial is upheld, he or she can file an appeal to the Court of Appeals.

However, if the decision is still an order to remove the alien, then there is a need for other form of relief. This relief is the filing of an I-130 petition as spouse of a United States citizen based on good faith marriage. This final form of relief may be availed of while in any stage of the proceedings but not after the alien is given a final order of removal after all appeals has been exhausted.

If the alien is given voluntary departure at the end of the removal proceedings, a motion to reopen must be filed before the expiry date of voluntary departure in order to avail of relief from removal based on petition by a US citizen spouse. If voluntary departure is not granted, the alien may still file a motion to reopen within 90 days from the date of the final order of removal by the Immigration Judge or the BIA. The regulation state that an alien may file "only one motion to reopen."

Answer: A motion to reopen for adjustment of status based on pending I-130 petition by a US citizen spouse should be granted where:

The motion is timely filed and not barred by numerical limitation (that is only one motion to reopen) or other bars or any other procedural bars, and

There is a clear and convincing evidence presented that the marriage is in good faith.

Note: This is not a legal advice.

Filing under the new late amnesty settlement starts on February 1, 2009 and ends on January 31, 2010. The requirements are: (a) the applicant came to the United States on a valid visa before 1982 and fell out of legal status between 1982 to 1988. (b) The violation of status must be known to the government. (c) They must have resided continuously in the United States from before 1982 to 1988. Some denied amnesty applicants may file again this time if (a) their application has not been adjudicated or (b) their Temporary Resident Status has been proposed for termination or (c) their applications were denied because the government believed that they failed to meet the requirement that their unlawful presence was continuous.

We again have successfully obtained a waiver of fraud or misrepresentation in Immigration Court for a green card holder who entered as single but is actually married. The green card holder who has been in the United States for 17 years has a mother who is a US citizen.