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Adjustment of Status under INA 245(i) Approved without an Interview!

Jan 27, 2023 | adjustment of status, EOIR, Green card, immigration, Immigration Court, motions to reopen, Niz-Chavez, removal, USCIS

Thrilled to start the new year off by giving news to my clients of this adjustment approval!  This was a 245(i) adjustment of status case (old law under which family or worker petitions had to be filed prior to April 30, 2001 in order for an individual to be “grandfathered” or protected under INA section 245(i)).  The client’s mother’s brother (so the client’s uncle) had petitioned for her when my client was a minor child.  So he was included in the sibling petition as a derivative child of the beneficiary (the mother).  My client later entered the country without inspection and was eventually issued a removal order.

Later, he married his U.S. citizen wife and they had two children.  When the couple came to me for legal advice, we initially strategized that we would ask the U.S. Immigration and Customs Enforcement lawyer if they would be willing to join in a motion to reopen to let my client adjust status, because even though he entered without inspection, he would be protected under INA section 245(i) since his uncle had petitioned for his mother back in 1995 and my client was a derivative beneficiary of that petition at that time.  So his wife could now petition for him, and instead of seeking adjustment of status under INA 245(a) (which is for people who are “inspected and admitted” or “paroled”), he could seek it under INA 245(i) (which is for people who entered without inspection, like my client did, as long as they were a beneficiary of a petition filed on or before April 30, 2001).

While we were working on preparing a new visa petition from my client’s wife, the United States Supreme Court issued a decision in the case of Niz-Chavez v. Garland, which said that a Notice to Appear (NTA) that did not contain a date and time of the initial immigration court hearing, is not a valid Notice to Appear as defined by immigration law, and therefore, the individual who was placed in removal proceedings with an NTA that lacked the hearing date and time continued to accrue physical presence in USA for purposes of non-permanent resident cancellation or removal, which required the individual seeking that relief to show they’ve been physically present in USA for at least 10 years BEFORE an NTA was issued.  Under the “stop time” rule, the physical presence is cut-off when an NTA is issued, so that if the person didn’t already have 10 years prior to the NTA issuance, they may not be eligible for cancellation of removal. But when the Supreme Court said that an NTA that didn’t have a date and time of the hearing is not a compliant NTA and time continues to accrue, I immediately checked ALL of my clients’ NTAs to see whether anyone could benefit. This Supreme Court case was helpful to people who didn’t have any other form of relief available, but if they could get their removal case reopened, they could seek cancellation of removal if they could show they met all the requirements for non-permanent resident cancellation of removal, now, including that they had 10 years of physical presence due to the non-compliant NTA they were issued.

Of course, I checked this client’s NTA and it did not have date and time on it.  So I suggested that he also try to get his case reopened under the Niz-Chavez case to seek cancellation of removal, in the event his wife’s visa petition were denied or if a joint motion to reopen was denied.  After a thorough discussion of pros and cons, my client agreed that we should file a motion to reopen with the immigration court asking for a reopening for cancellation of removal OR a sua sponte reopening for adjustment of status under INA section 245(i).

I filed a lengthy motion within 90 days of the Supreme Court’s decision to show my client’s due diligence, asking for a reopening of the removal case to allow my client to seek cancellation of removal as he could demonstrate that he met the criteria, including showing he has 10 years or physical presence since time continues to accrue since his arrival since the non-compliant NTA did not “cut-off” his physical presence.  DHS has a certain amount of time to oppose a motion that is filed with an immigration court.  To my surprise, the DHS lawyer contacted me and told me that after reading my motion and reviewing the extensive supporting evidence we submitted, she would agree to join in my motion to reopen my client’s case to let him pursue adjustment of status, by us both asking the judge to reopen the case and then terminate it, so that my client could seek adjustment of status directly with U.S. Citizenship and Immigration Services (USCIS).  I could not believe this was happening, since I expected an opposition (like all my other motions were opposed for a reopening under Niz-Chavez, since the DHS’ interpretation of the case is wildly different!).

My client was thrilled!  So I quickly drafted a joint motion to reopen and terminate proceedings, which was signed by both me and the DHS lawyer. I filed the motion with the immigration court, and we excitedly awaited the judge’s decision terminating the proceedings (since that’s what both parties wanted).  Instead, a few days after I filed the joint motion, I received a denial of the original motion to reopen that I filed, asking for a reopening under Niz-Chavez or a sua sponte reopening for adjustment of status! It was clear to me that the judge had not seen the joint motion that I had filed when she denied the original motion!  Client and his wife were terrified and confused.  I explained to them I would file a motion to reconsider the denial, explaining to the judge that both parties wanted this case reopened and dismissed for adjustment of status.

The judge realized her error (but of course, didn’t admit it), and reopened and terminated my client’s removal proceedings as per the wishes of DHS and us through the joint request.  We then filed the adjustment of status case with USCIS (the I-130 visa petition from his wife was already pending, since we filed that first on its own), since USCIS now had jurisdiction over the application for adjustment of status, and today, my client received an approval of his adjustment case without an interview!

What’s even more emotional than getting this alert that the case was approved?  My client’s response when I told him!

 

I cried in my office today.  This man’s journey has lasted 23 years and finally, he will not have a sleepless night worrying about whether he will be able to stay here with his wife and two children, all of whom rely on him for support (just like MANY other families out there, where a foreign national family member is a backbone of the family!)

I don’t know what the future holds, but I KNOW this family will be able to stay together!  Nothing makes me happier than knowing that!

Ruchi Thaker