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Complex Deportation Case Terminated, Client to Get a Greencard Even with an Old Exclusion Order

Jan 17, 2013 | adjustment of status, Exclusion proceedings, motions to reopen

Last year, I took on a very complicated deportation case, where my client and his wife were told by numerous other lawyers that nothing could be done on their case.  The client, an Indian citizen, has been in this country for over 20 years.  When he first came here in 1992, he was placed in exclusion proceedings by the former Immigration and Naturalization Service (now known as the Department of Homeland Security).  He applied for asylum, but lost his case with the immigration judge.  He appealed to the Board of Immigration Appeals, and lost the appeal in 1993.  When he lost his appeal, the exclusion order against him became final.  But the INS never physically deported him.

My client continued to live his life, and in 1994, he was told he could get a work permit if he paid an immigration agency a large sum of money to file the paperwork.  Feeling desperate to survive, my client traveled from New York to Oregon and signed some documents with an immigration agency that promised to get him a work permit.  He was told to wait for his work permit to arrive in the mail.  He returned to New York.  A month later, he learned that the “immigration agency” was not real and the people posing as workers of that agency were arrested for immigration fraud.  Not only did my client lose thousands of dollars, but he never got a work permit.

The trip to Oregon cost my client a lot more than just money and a work permit – his name was on the list that the “immigration agency” possessed as one of its “clients,” and when the agency was raided by the INS, my client’s name was disclosed to the INS for investigation.

Based on the information the INS discovered from the “immigration agency” about my client, in the summer of 1994, it started a new deportation case against my client, not knowing that he already had an exclusion order.  The agency had made up all sorts of things relating to my client, such as his date of entry into the Untied States.  Not investigating the information obtained in the raid, the INS simply relied on the “agency’s” information about my client and made allegations of deportability against him.  My client never received a hearing notice to show up in immigration court, and in September of 1995, he was ordered deported by an immigration judge in absentia.

My client went on to build a great life for himself with a wonderful woman, whom he recently married, and the couple had two children together.  He also built a successful and profitable business in New York.  After years of not being able to do anything to fix his immigration status, he and his wife finally decided to try to speak with immigration lawyers to see if anything could be done to allow him to obtain permanent residency (greencard).

All immigration lawyers turned my client and his wife away, because they either could not understand his case or did not know how to fix his situation.  When the couple finally came to me, and after I investigated his case, he learned for the first time about the 1995 deportation order against him when he didn’t show up in court.  The other lawyer he previously spoke with never looked into his case enough to discover the second (deportation) case.  Any immigration lawyer with basic knowledge of immigration law should be aware that the INS/DHS cannot start a new case against a foreign national if he or she is already subject to a previous order, such as an exclusion, deportation, or removal order.  If an order of exclusion, deportation, or removal exists, already, the INS/DHS does not need to start a new case to deport the foreign national.  It can just deport the person based on the existing order.

I immediately outlined a detailed, multiple-step course of action for the client’s complicated case.  There were numerous things that needed to be done, including filing motion to reopen the deportation case, then a motion to terminate the deportation case, and eventually, an application for adjustment of status along with a visa petition from his United States citizen wife.

After reviewing my detailed explanations in the motion, an immigration judge in New York City granted my motion to reopen the deportation case, which effectively took away the 1995 deportation order against my client.  With the deportation order gone, the client was still subject to the exclusion order from 1993.  However, as I previously discussed in one of my posts, noncitizens with exclusion orders, if otherwise eligible, can pursue adjustment of status.  The exclusion case does NOT need to be reopened (unlike a deportation or removal case).  Because my client was eligible for adjust his status based on his marriage, we filed his application for permanent residency.  He will become a permanent resident.

According to my client, no other lawyers he spoke to in the past knew how to proceed on a case with an exclusion order.  While exclusion proceedings no longer exist (after 1996), there are still some old laws that are helpful to people with exclusion orders.  It is the immigration lawyer’s responsibility to look into all possible ways to help someone, and not just give up when a case seems “too complicated.”

Ruchi Thaker