Our client, a Nigerian woman and a single parent of three United States citizen children, came to us in the spring of 2010 to discuss her case, which had a very complicated procedural history.  She had been in deportation proceedings since early 1996.  She first lost her suspension of deportation case in immigration court.  She then lost her appeal at the Board of Immigration Appeals.  She also did not succeed with her motion to reopen with the Board.  She then took her case to the Second Circuit Court of Appeals in 2005, and she also lost there.  She consulted with other lawyers, and no one gave her any hope.

When she came to see us with all the documents she had in her case since 1996, it was indeed overwhelming at first.  We first told her something no other lawyer had ever told her.  She had accepted a grant of voluntary departure from an immigration judge after her suspension of deportation case was denied.  What that meant was that she was granted an opportunity to leave the United States voluntarily instead of being deported (either forcibly or through self-deportation if she left the country at any time after being subject to a deportation order).  Voluntary departure is a good idea if you are ready and willing to leave in the time frame a judge grants.  However, our client had three young United States citizen children, and it was impossible for her to leave with them or without them.  When the Board dismissed her appeal, it re-instated the immigration judge’s voluntary departure order and gave her 30 days to leave.

Our client did not leave the country under voluntary departure.  So by law, when she failed to depart, she became subject to an automatic deportation order.  Under the law that existed for people in deportation proceedings, she became subject to a five year bar from applying for any benefit in the United States.  This means, even if she became legally eligible for a form of relief while being subject to the deportation order, her case could not be reopened for at least five years regardless of the fact that she was eligible for a new form of relief from deportation.

Our client remained unaware of this important five year ban because her previous attorneys did not inform her of it.  Thus, the motion to reopen that was done during the five year bar was a waste.

When she came to consult with us, the five year ban had expired, but her cases still needed to be reopened before she could apply for adjustment of status based upon her adult United States citizen son’s approved visa petition.  We informed her of the option to seek the consent of the Department of Homeland Security to join in a motion to reopen.  We advised her that due to the complex procedural history, and the fact that she ignored the privilege of voluntary departure, it would be extremely difficult to convince ONE lawyer at the Department of Homeland Security that she deserved to have another chance to legalize her status.

In addition to the legal writing we did for the motion, we worked very closely with our client in preparing numerous important documents in support of her motion.  We also worked with her friends and family members, as well as community leaders, to gather more support for her case through intensive document collection.  Though there were numerous obstacles in the way, working with our client, we helped her tackle those issues in order to properly present her case to the Department of Homeland Security.  After all, since we would be essentially “begging” the Department of Homeland Security to join in our request to have her case reopened, we wanted to make sure everything was as clear and perfect as possible, so that there would not be too many questions about our client and her life in the mind of the one lawyer from the DHS who would be reading our motion.

Less than one month after we filed our proposed joint motion to reopen with the DHS in New York, we received a personal phone call from the Acting Chief Counsel of the DHS, who told us that he would join in our request to reopen our client’s case!  He had no questions about our client’s worthiness to apply for adjustment of status at this point, since everything was clearly explained to him in our motion (as to why she was legally eligible and why she deserved to have her case reopened).

The best part of our day was the phone call we made to our client to give her the good news.  She simply could not believe that what she had been trying to achieve with other attorneys since 1996 was achieved through our office in less than one year after she hired us to prepare the joint motion to reopen.

It makes our hearts happy to see our clients this happy.  While to us, working on cases for each client is a “normal” routine, it never ceases to amaze us the impact felt by our clients and their families.  To hear a mother say “Thank you for giving me the chance to stay with my kids here in America” is music to our ears.

We hope to continue this amazing journey with all of our clients to try to help them achieve their immigration goals!

© 2011, Thaker Berowitz LLP. All rights reserved.

The Supreme Court had to decide whether it was sufficient to trigger 1252(a)(2)(B)(ii) for something to be specified as “discretionary” under the regulations.

On January 20, 2010, the Supreme Court rendered a unanimous decision in the case, and held that the 8 U.S.C. § 1252(a)(2)(B)(ii) only applies to the Attorney General’s (i.e. the BIA’s) decisions that are made discretionary by the statute (the Immigration and Nationality Act), not to determinations that are made discretionary by the Attorney General himself through regulations (i.e. Title 8 of the Code of Federal Regulations).

While the Court did not specifically resolve other issues, such as whether its opinion extends to reviews of discretionary relief (such as adjustment of status), such that a review of an underlying motion to reopen for that discretionary relief would be precluded by the statute, this is a significant development in current immigration laws, because it signals a departure from the previously foreclosed opportunity to challenge a denial of a motion to reopen, which, by itself, was typically considered “discretionary” and ancillary.

Under current immigration laws and regulations, only one motion to reopen may be filed and it must be filed within 90 days of the Board of Immigration Appeals’ decision dismissing an appeal.

© 2010, Thaker Berowitz LLP. All rights reserved.

© 2009, Thaker Berowitz LLP. All rights reserved.

This new BIA decision allows U.S. Immigration and Customs Enforcement to deport people based upon old exclusion, deportation, or removal orders even when a legitimate application for adjustment of status is pending before the U.S. Citizenship and Immigration Services.  The BIA concluded that because arriving aliens can only adjust status before the USCIS, and because the application would be pending with the USCIS and not the BIA, there is no jurisdiction for the BIA to reopen an old exclusion, deportation, or removal case.

Interesting, in Matter of Yauri, the USCIS had already approved the adjustment of status application before the BIA issued the precedent decision on October 28, 2009.  So the BIA could have easily just not addressed this issue altogether.  However, because it did and because of what it said, other people risk deportation.

© 2009, Thaker Berowitz LLP. All rights reserved.

Cornell University School of Law Legal Information Institute has a very good summary of the legal issues in this case as well as the facts of the case.

We will certainly track this case and issue any updates right here on our blog.

© 2009, Thaker Berowitz LLP. All rights reserved.