CASE: Motion to Remand / Reopen based on Pending I-130 Petition
CLIENT: Moldovan
LOCATION: Cleveland, OH
Our client came to the United States with a valid J-1 visa from Romania in June 2007. He remained in the United States for a time longer than permitted. Later, he was placed in deportation proceedings due to his overstay and a Notice to Appear was issued. His asylum relief was denied by the Immigration Judge in April 2012, but an appeal was timely filed. The BIA appeal was pending when our client contacted our office in March 2014.
While the BIA appeal was pending, our client married his U.S. citizen wife in February 2013. His wife filed an I-130 petition for our client on March 7, 2013. He contacted our office for legal assistance for a Motion to Remand and possible adjustment of status if the Motion is granted. We explained to him that the Motion to Remand procedure and he retained our office on April 8, 2014. On April 17, 2014, we prepared and filed a Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client. You typically want the I-130 to be approved prior to filing the Motion to Remand, but by submitting the actual I-130 application itself and its supporting documents attached to the Motion, you can show that it is approvable.
In Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992), the BIA found that a motion to remand must conform to the same standards as a motion to reopen, where the respondent presents new evidence which would likely change the result of the case. In a Motion to Reopen before the BIA, the Applicant must show that the evidence is material, unavailable at time of original hearing, and could not have been discovered or presented at the original hearing. 8 C.F.R. § 1003.2(c)(1). In this case, adjustment of status relief was not available for our client at his previous hearing since he was not married his U.S. Citizen wife.
Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on April 17, 2014. We argued that our client will be eligible for adjustment of status once the I-130 is approved since he had a legal entry to the U.S., has no criminal records, and has no other grounds of inadmissibility. We also attached a lot of bona fide marital evidence between our client and his U.S. citizen wife to demonstrate that the I-130 petition is approvable.
While his motion was pending before the BIA, he and his wife appeared for the I-130 interview on May 5, 2014. Prior to the interview, we thoroughly prepared our client at our office. On the day of our client’s I-130 interview, our attorney accompanied them at the Cleveland, OH USCIS. The interview went well, and the I-130 petition was approved.
On June 6, 2014, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.