When a petition for your spouse is denied by USCIS, you will receive a decision in the mail usually within thirty days of the interview. In that decision it will tell you the basis of the decision and your right to appeal. The appeal must be filed within 30 days to the Board of Immigration. It must be received within 30 days from the date of the decision. Appeals must be mailed to the USCIS office that made the unfavorable decision and not to BIA directly.
Question: What form should I use on my appeal to BIA?
Answer: You should use EOIR 29 and pay the filing fee of $110. Only the petitioner may appeal the decision. If the petitioner is represented by an attorney, a signed EOIR 27 should be filed with the appeal.
Question: What is the scope of review by the BIA on denial of an I-130 petition by USCIS officers?
Answer: The BIA may review all questions of fact or law “de novo” or by taking a completely new look on the case without taking into consideration the basis of the decision rendered by USCIS or DHS officers. If an immigrant petition Form I-130 is denied, the BIA may look at the application of law to the existing facts as if the petition is newly submitted to them for their decision.
Question: What are examples of errors in the application of law?
Answer: There are statutes, procedures and case law that must be applied to the facts of the case. If the precedent case law, statute or procedure is not followed then there is an error in the application of law. Example is when the petitioner satisfied the burden of proof by preponderance of evidence and still the USCIS denied the petition against the weight of the evidence. Another example is when the evidence submitted that qualifies for the relief was not considered by DHS.
Question: What should an alien do so that the case will have a better chance of getting approved on appeal?
Answer. If there are documents that need to be submitted such as declarations, affidavits and joint documents, these should be submitted on appeal. Cases on appeal are decided solely on the basis of the “record” in the case which means what you submitted before and on appeal.
Note: This is not a legal advice.
Immigration news
• On March 1, 2011, we received an approval of adjustment of status by an Immigration Judge for an alien who was originally denied adjustment of status based on petition by employer.
• On January 25, 2011, we received an approval of a self-petition by a battered spouse. Her entry with a different name was forgiven.
• On December 23, 2010, we received an approval from the Immigration Court for a waiver of misrepresentation for an alien who entered as single but actually married.
• On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
• Abused spouse of US citizen or permanent residents can self petition even if there is a problem with the entry documents such as C or D visa or entry without inspection or assumed name.
• Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened.
Bankruptcy news
• Collection actions continue and you can be sued if you are in debt settlement.
• If you are near retirement age, you must eliminate most of your debts.
• Bankruptcy will stop foreclosure actions. If your trustee sale date is 10 days before, you can still file for bankruptcy.
• If your salary is being garnished, you have a court case about debts or you are being harassed by creditors, bankruptcy can stop garnishment, court cases, harassing creditors and eliminate the debt.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
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