CASE: Joint Motion to Reopen and Termination of Removal Proceedings with an Approved I-130 Petition
LOCATION: Kentucky; San Francisco (EOIR)
Our client is from Indonesia who came to the U.S. on a B-2 visitor’s visa in March 2004. She has remained in the United States past her authorized period of stay. Later, she filed for asylum and withholding of removal in April 2006, but the Immigration Judge in San Francisco, CA denied all applications for relief.
She filed an appeal with the BIA, but in June 2007, the Board affirmed the Immigration Judge’s findings and dismissed the appeal. She then proceeded to appeal her case at the Federal Circuit Court, but was denied. She even filed a Motion to Reopen, which was also denied in January 2013.
Our client remained in the United States with the final order of removal.
She married her current U.S. citizen husband in August 2012. Her husband filed an I-130 petition in November 2012, which was subsequently approved by the USCIS in November 2013.
Our client and her husband consulted our firm. They wish to know if she has any viable options for her immigration status.
After careful review, our office determined that we can file a Request to the DHS to join in a Motion to Reopen based on the I-130 approval and Bo Cooper’s May 17, 2001 Memorandum.
Our client retained our office on December 4, 2013.
Once retained, our office prepared and filed a Request to Join in a Motion to Reopen and Terminate to the San Francisco DHS office on February 21, 2014. Our office prepared an extensive brief along with multiple supporting documents to request a favorable exercise of DHS’s discretion on this case. Our client’s husband was a member of the US army, deployed in Afghanistan several times, and that was part of our argument.
We argued that DHS should consider the following factors as set forth in Bo Cooper’s May 17, 2001 Memorandum: (1) whether adjustment of status was available at the prior hearing; (2) whether the alien is statutorily eligible for adjustment of status; and (3) whether the alien merits a favorable exercise of discretion. Bo Cooper, Motions to Reopen for Consideration of Adjustment of Status (May 17, 2001). In considering these factors, as delineated in William J. Howard’s October 24, 2005, Memorandum, “Where a motion to reopen for adjustment of status… is filed on behalf of an alien with substantial equities, no serious criminal or immigration violations, and who is legally eligible to be granted relief except that the motion is beyond the 90-day limitation contained in 8 C.F.R. § 1003.23, strongly consider exercising prosecutorial discretion and join in this motion to reopen to permit the alien to pursue such relief to the immigration court.” William J. Howard, Prosecutorial Discretion (October 24, 2005).
Our office argued that if our client’s case is reopened, she will be prima facie eligible to adjust her status. Our client has been living in the United States since 2004, has no criminal record, and has an approved I-130 petition based on the marriage to U.S citizen spouse.
Eventually, the DHS office agreed to join in our Motion to Reopen and Terminate on April 21, 2014. The DHS filed the joint motion to the San Francisco Immigration Court, and our client case will be reopened and terminated soon.