CASE: Motion to Remand / I-130 Approval
CLIENT: Nepalese
LOCATION: Baltimore, MD
Our client came to the United States with a valid B-2 visa from Nepal in January 1998. He remained in the United States for a time longer than permitted. In November 2009, he was placed in deportation proceedings due to his overstay and a Notice to Appear was issued. His asylum application was denied by the Immigration Judge, but an appeal was timely filed.
While the BIA appeal was pending, our client’s daughter became a naturalized U.S. Citizen in January 2012. Our office immediately filed an I-130 petition for our client on February 6, 2012. After we received the I-130 receipt notice, we prepared and filed a Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client. You typically want the I-130 to be approved prior to filing the Motion to Remand, but by submitting the actual I-130 application itself and its supporting documents attached to the Motion, you can show that it is approvable.
In Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992), the BIA found that a motion to remand must conform to the same standards as a motion to reopen, where the respondent presents new evidence which would likely change the result of the case. In a Motion to Reopen before the BIA, the Applicant must show that the evidence is material, unavailable at time of original hearing, and could not have been discovered or presented at the original hearing. 8 C.F.R. § 1003.2(c)(1). In this case, the adjustment of status relief was not available for our client at his previous hearing since his daughter has not become a naturalized U.S. citizen yet.
Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on February 24, 2012. We argued that our client will be eligible for adjustment of status once the I-130 is approved since he had a legal entry to the U.S., has no criminal records, and has no other grounds of inadmissibility. Eventually, on July 10, 2012, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.
While we were waiting for adjudication of the I-130 petition, the USCIS issued a Request for Evidence (RFE) regarding the paternal relationship of our client. Apparently, the birth certificate submitted from Nepal was not enough. So we scheduled a DNA test for our client and this resulted to a 99.99% likelihood of paternity. On September 14, 2012, the USCIS approved the I-130 petition for our client. Now, he can apply for the adjustment of status before Immigration Judge or USCIS upon termination of his proceedings.
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