BIA Motion to Reopen and Termination of Removal Proceedings for Chinese Client in New York

CASE: Motion to Reopen / Termination of Removal Proceedings

CLIENT: Chinese

LOCATION: New York, NY

Our client came to the United States from China with valid B-2 visitor’s visa in 1996. Within one year of his entry, he filed an I-589 Application for Asylum.

In January 1998, our client had his asylum interview in Rosedale, New York. After the interview, his asylum application was referred to the New York Immigration Court and a Notice to Appear was issued for our client.

Respondent attended his first hearing, but missed his second hearing in December 1998. Respondent said he did not know of his second hearing, and that his attorney never informed him of such. Thus, he missed it.

Our client has remained in the U.S. ever since to take care and raise his U.S. Citizen daughter. He was with his wife who is now a lawful permanent resident.  Over the past decade, his wife had suffered from several medical issues.

Our client then became the beneficiary of an approved I-130 petition filed by his U.S. Citizen daughter. However, he could not adjust his status based on this I-130 petition due to his final order of removal.

Prior to retaining our office, our client tried to reopen his case with the Immigration Court through two other immigration lawyers in New York; however, both were not successful.

We reviewed his case and informed him that reopening will be tough because previous lawyers have tried twice and were denied. We told him that if we were to do it, we plan to emphasize the medical hardships of his wife and also technically address the ineffective assistance of counsel issue, by having him do all necessary steps, from the bar complaint, to proper notification, and others. He agreed.

On December 8, 2011, our client retained our office to do another Request to Join in a Motion to Reopen.

Once retained, our office extensively prepared and gathered documents for our client’s request to join in a Motion to Reopen with the DHS.  As set for forth in Bo Cooper’s May 17, 2001 Memorandum, in determining whether to join in a Motion to Reopen, the INS (now the DHS) should consider the following factors: (1) whether adjustment of status was available at the prior hearing; (2) whether the alien is statutorily eligible for adjustment of status; and (3) whether the alien merits a favorable exercise of discretion.

In considering these factors, as delineated in William J. Howard’s October 24, 2005, Memorandum, “where a motion to reopen for adjustment of status… is filed on behalf of an alien with substantial equities, no serious criminal or immigration violations, and who is legally eligible to be granted relief except that the motion is beyond the 90-day limitation contained in 8 C.F.R. Section 1003.23, strongly consider exercising prosecutorial discretion and join in this motion to reopen to permit the alien to pursue such relief to the immigration court.”

Thus, we argued that if our client’s case is reopened, he will be prima facie eligible to adjust his status.  In our brief, we argued that our client had substantial equities considering the medical records of his wife and legal status of both his wife and daughter.

Our client had no criminal records and his immigration violation was for overstaying his legal entry.  Despite his overstay, our client still filed for asylum within one year of his entry to the United States. We pointed out that our client was not informed of his immigration hearing due to the ineffective assistance of his previous immigration counsel. We also pointed out that his daughter is a world class pianist who has perfumed in several prestigious events.

On July 11, 2012, our office filed the Request to Join in a Motion to Reopen to the Office of Chief Counsel in New York, NY.  In an 11-page brief, we pointed out several factors from his detailed affidavit regarding his immigration history and equities. Several affidavits from his family members were also included.

We also included over 200 pages of supporting documents to show his wife’s medical issues, his prima facie eligibility for adjustment of status if his case was reopened, and Lozada compliance documents.

On December 4, 2012, after two tries by our client with two other lawyers, the New York DHS-ICE office agreed to join in the motion to reopen for the sole purpose of having the Court terminate the case without prejudice to allow our client to seek adjustment of status.

Once we got consent from the DHS, our office prepared and filed a Motion to Reopen and Motion to Terminate to the Board of Immigration Appeals on December 21, 2012.  Eventually, the Board of Immigration of Appeals granted our Motions on March 5, 2012.  Now, our client’s final order of removal is rescinded, and he can file an I-485 adjustment of status application based on the approved I-130 petition to the USCIS directly.

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