WE have all heard the popular saying, “Timing is everything.” Unfortunately, this saying often adversely applies to those persons who have found an avenue from which to obtain a green card, only to be prohibited from doing so because he/she has a prior removal/deportation order. A typical scenario involves a person who entered the US years ago on a B-2 tourist visa, overstayed, and was ordered removed by the Immigration Court. Fast forward to today, that person who was ordered removed finds true love and marries a US Citizen. Seemingly close to finally obtaining permanent resident status, he/she is precluded from doing so because of the prior removal/deportation order. What options does one have in such a case?
A motion to reopen the removal/deportation proceedings and rescind the removal/deportation order can be filed in Immigration Court. If the motion to reopen the proceedings and rescind the removal/deportation order is successful, the alien can pursue whatever relief from removal/deportation that is available to him/her. For the scenario cited in the first paragraph, the relief would be adjustment of status to permanent resident via marriage to a US citizen spouse. The relief would be presented in Immigration Court, with the Immigration Judge to decide the merits of the adjustment of status application. Alternatively, if an agreement with the Department of Homeland Security (DHS) can be obtained to terminate the proceedings, a decision on the adjustment of status application can be made outside Immigration Court, by the USCIS.
Generally, a motion to reopen removal/deportation proceedings must be filed within 90 days of the date of entry of the removal/deportation order. However, several bases upon which a motion to reopen may be filed past 90 days exist, and are discussed below.
Under 8 CFR § 1003.23(b)(4), a motion to reopen can be filed at any time if notice of the proceedings was not received by the person subject to the removal/deportation order, and a removal/deportation order was entered in his absence. Written notice of the time and place of removal proceedings must be given in person to the alien, or shall be given by certified mail to the alien or to the alien’s counsel of record. INA §242B(a)(2)(A). Further, written notice of the proceedings, if provided by certified mail, must be provided at the most recent address reported by the alien. Matter of Grijalva, Interim Decision 3246 (BIA 1995). The requirements for notice of removal/deportation proceedings are strict, and careful analysis of a person’s immigration court file often results in finding evidence that DHS did not comply with required procedure, which can be the basis for reopening the removal/deportation proceeding.
Further, the Immigration Judge has discretionary authority to reopen or reconsider cases on his or her own motion (“sua sponte”) at any time providing a valid basis can be shown.
8 CFR § 1003.23(b)(1). Careful analysis of not only the immigration court file, but also the specific facts and circumstances of the case is necessary to put forward a valid basis on which the Immigration Judge can rely to reopen the proceedings. Some bases upon which cases I have been able to reopen cases include improper section cited by the DHS attorney in the charging document, insufficient evidence presented by the DHS attorney in proving up the case against the alien, and hardship and humanitarian concerns.
If you have a prior removal/deportation order which is preventing you from adjusting status, it is recommended that you consult with an experienced attorney to ascertain the bases upon which a motion to reopen can be filed.
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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.
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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: (323) 639-0277. Email: [email protected].
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