CASE: Termination of Removal Proceedings
CLIENT: Filipino
LOCATION: Chicago, IL / Los Angeles, CA
This case is an example of how new immigration regulations applied and helped in a situation where the immigrant beneficiary’s petitioner is deceased before she applied for adjustment of status. Our client is from the Philippines and came to the U.S. on a B-2 visitor’s visa in 2001. Since her last admission, she has overstayed in the United States. Currently, she resides in Chicago, Illinois.
Prior to retaining our firm, her father filed an I-130 petition for her back in 1987. As some of you may know, the priority dates for Philippine nationals under the family-based immigration category are more retrogressed than other countries. The I-130 petition was approved by the INS in 1987. However, she could not apply for her green card until her priority date became current. Therefore, she had to wait for more than 15 years in order to even apply for her green card.
Unfortunately, her father (I-130 Petitioner) passed away before she was eligible to apply for her green card. She was placed in removal proceedings after the DHS found out about her overstay in the United States. She was under the impression that nothing could be done since her father (the I-130) petitioner died.
We explained that we can terminate removal proceedings and we can help her adjustment of status application with a substitute sponsor. Our office was retained in November 2010, and we later filed her I-485 Adjustment of Status application with a substitute sponsor (her US Citizen sister) and a Request to Join in a Motion to Terminate with the Department of Homeland Security.
Before 2009, through the more stringent humanitarian reinstatement process, the INS (USCIS now) allowed the foreign national’s spouse, parent, mother-in-law, father-in-law, sibling, child who is at least 18 years of age, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian to become a substitute sponsor if a family-based visa petitioner dies following the approval of the I-130 petition but before the foreign national obtains permanent residence. Even if the I-130 had been approved, it would be deemed revoked once the petitioner dies. At that time, reinstatement of the revoked petition was not automatic despite a substitute sponsor being available. And the process was still a matter of discretion. The INS had to determine whether “humanitarian reinstatement” was appropriate based on the individual facts of the case. Thus, the applicant must demonstrate exceptional hardship and request for humanitarian reinstatement if his or her petitioner is deceased before the petition gets reinstated.
Public Law 111-83 (2009) eased this burden for beneficiaries whose petitioners are deceased prior to their adjustment of status application. The new regulation does not require “humanitarian reinstatement” anymore. Therefore, as long as there is a qualified substitute sponsor for these beneficiaries, the beneficiaries are eligible for adjustment of status even if the original petitioners are deceased.
Our client’s US citizen sister was willing to become a substitute sponsor for our client. On January 5, 2011, our office filed a request to join in a Motion to Terminate proceedings with her I-485 application and supporting documents. Our client’s master calendar hearing was scheduled on February 2, 2011 at the Los Angeles Immigration Court (Although she currently resides in Chicago, IL, her NTA was served in Los Angeles and she did not change her venue).
Prior to her hearing, the DHS counsel in Los Angeles agreed to terminate our client’s proceedings. With this joint motion, Attorney Sung Hee (Glen) Yu from our office represented our client at the Los Angeles Immigration Court. Attorney Yu explained the new regulation and how this law applied to our client’s situation before the Immigration Judge. The Immigration Judge granted termination without prejudice and her case is now with the USCIS Chicago Office, awaiting adjudication.
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