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Joint Motion to Reopen Agreed to by ICE for an Old Removal Order

Sep 20, 2022 | adjustment of status, BIA, immigration, motions to reopen, removal, USCIS

 

What is a Joint Motion to Reopen?

Joint motion to reopen if a form of prosecutorial discretion exercised by a lawyer from Immigration and Customs Enforcement, Office of Chief Counsel.  These are the lawyers who represent the US government in immigration courts.

A joint motion to reopen is a motion agreed to by both the ICE lawyer and you (or your lawyer), that your deportation or removal case should be reopened (and possibly dismiss) to allow you to pursue the form of relief they are seeking.

Usually, this is adjustment of status based on a family member’s visa petition that is either pending or approved.

What does a joint motion to reopen accomplish?

A joint motion to reopen, if granted, removes the barrier that prevents a person from getting the benefit they are seeking.

That barrier is the deportation or removal order against them.

With a final order of deportation or removal, you cannot directly file for a green card with USCIS, even if you become eligible for it.  The deportation or removal order against you prevents USCIS from having any authority over your case (there are very narrow exceptions to this).

To get rid of the deportation or removal order, joint motion to reopen is a good option, depending on your specific situation.

Who do I ask to join in my motion to reopen?

Joint motion to reopen is a request you can only file with the ICE office having jurisdiction over where your deportation or removal case took place.

For example, if you removal proceedings were in New York over 15 years ago, but you now live in California and want to file a joint motion to reopen, you must fie your motion with the ICE Office of Chief Counsel in New York.

You cannot directly file the actual joint motion request with an immigration court or the Board of Immigration Appeals.

However, if the ICE lawyer agrees to reopen your case (ie. joins in your request to reopen), then you and the ICE lawyer jointly file that request with either the immigration court or the BIA, whichever authority heard your case last.

This happens through a short motion signed by both the ICE lawyer and you (if you filed on your own) or your lawyer, telling the court or the BIA that both parties want the case reopened, and explain why.

Majority of the times, when both parties want to reopen the case, the court of BIA usually reopens for the purpose sought in the motion.

How did you succeed on your client’s joint motion to reopen?

This case has a LONG history!

My client came to the USA in 1993 as a conditional lawful permanent resident based on his marriage.

As soon as he came to this country, his marriage fell apart.  His I-751 petition to remove the conditions was denied.  Department of Homeland Security placed him in removal proceedings.  In immigration court, my client fought the allegation that his marriage was not bona fide as alleged by DHS.

While in removal proceedings, he married again, and his new wife filed a visa petition for him.  However, that marriage did not work out either, so adjustment of status was also not an option for my client.

While the immigration judge agreed that there was no marriage fraud in the first marriage, he still concluded that my client did not present enough evidence to show that his marriage was bona fide.

So the immigration judge terminated my client’s conditional lawful permanent resident status and gave him voluntary departure.

Voluntary departure meant that my client had to leave the country voluntarily by a certain date.  If he failed to do so, the voluntary departure grant automatically becomes a removal order as a matter of law.  That removal order carries a 10-year bar from seeking certain forms of discretionary relief, like adjustment of status.

My client appealed the judge’s order to the Board of Immigration Appeals, where he lost.  The Board granted him voluntary departure.

He then took his case to federal court.  He also lost in federal court.

And of course, when he failed to depart by a specific date under the voluntary departure order, he became subject to a removal order!

Years later, he married his third (and current) wife, in 2009.

In 2015, he and his wife consulted with me about his options.

I explained that the 10-year bar for failing to depart under voluntary departure had now expired, so if his case was reopened, he could seek adjustment of status based on their marriage.

I first requested and reviewed his immigration court and USCIS files (which were gigantic, as you can imagine based on the case history since 1993!), and we then strategized to ask ICE Office of Chief Counsel to join in a motion to reopen his case to allow him to apply for a green card.

The first step was to get his wife’s visa petition filed.  This was also an uncertain time, as the Trump Administration was coming into office and we knew that policies were likely going to change, based on the views President Trump held on immigration.

While we knew it was a risk filing the visa petition and having to go on an interview on it (since in New York, there is usually an interview on a visa petition based on marriage that occurs after the beneficiary is placed in removal proceedings, since there is an assumption that marriage is for an immigration benefit), my client and his wife remained optimistic that he would not be detained at the interview on the basis of his removal order (which can happen!).

We filed the visa petition. It was pending for FOUR years.  We survived the Trump Administration!

In the summer of 2021, my client and his wife were called for an interview, and I went with them since they felt comfortable knowing I would be in the room with them.

The visa petition was approved the same day!

Once we had the visa petition approved, I prepared an extensive joint motion to reopen request to file with the Office of Chief Counsel in New York.  Working with my client and his wife, I presented all positive factors and equities my client had, including his lengthy marriage, his history of tax payments, his steady employment, no criminal history, a detailed history of his case, his life, etc.  I prepared the relief application to show he was statutorily eligible for a green card IF the removal order went away.  When I put the entire package together, it was more than 400 pages.

The motion remained pending for almost a year, and on September 13, 2022, I received a letter from an ICE lawyer who reviewed my motion and the evidence submitted, agreeing to join in my motion to reopen and dismiss my client’s removal proceedings, so that he can pursue adjustment of status directly with USCIS!

Last week, I filed the jointly signed motion with the Board of Immigration Appeals, and we are now waiting for the Board to act!

Once the Board acts to reopen and dismiss the removal proceedings, my client’s removal order will disappear and there will be nothing preventing him for filing the adjustment of status application with USCIS!

We all had tears of joy when we got this letter from ICE.  My client pursued his case for so many years, without success.  We then had to survive the strict policies during Trump Administration (for example, DHS was prevented from agreeing to join in motions to reopen, etc).  We then anxiously waited for the visa petition to be adjudicated, and finally, waited almost a year for a decision on the joint motion! But good things come to those who wait!

I am so happy for my client and his wife and we will soon be filing his adjustment of status application with USCIS! I hope to see him become a green card holder within the next few years!

Ruchi Thaker