CASE: Joint Motion to Reopen and Termination of Removal Proceedings with an Approved I-130 Petition
LOCATION: Indiana; San Francisco (EOIR)
Our client is from Pakistan who came to the U.S. on a B-2 visitor’s visa in May 2010. He remained in the United States even after his authorized stay expired. Later, he filed for asylum and withholding of removal. However, he could not attend his hearing due to an emergency medical issue. He even notified the immigration court but his submission was procedurally incorrect (this was used as an exhibit in our motion). Subsequently, he received an order of removal in absentia. A few months later, his jewelry store got robbed too, leaving them with no money at that time to afford a lawyer for a proper Motion to Reopen.
Our client remained in the United States with the final order of removal. He married his current U.S. citizen wife. His wife filed an I-130 petition in April 2014 with help from of our office, which was subsequently approved by the USCIS in November 2014.
Our client and his wife were wondering whether he has any viable option for his immigration situation. After careful review, our office determined that we can file a Request to Join in a Motion to Reopen based on the I-130 approval and Bo Cooper’s May 17, 2001 Memorandum.
Once retained, our office filed a Request to Join in a Motion to Reopen and Terminate to the San Francisco DHS office on February 13, 2015. Our office prepared an extensive brief along with multiple supporting documents to request a favorable exercise of DHS’s discretion on this case. 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, he will be prima facie eligible to adjust his status. Our client has been living in the United States since 2010, has no criminal record, and has an approved I-130 petition based on his marriage to his U.S citizen spouse.
As a result, the DHS office agreed to join in our Motion to Reopen and Terminate. The DHS filed the joint motion to the San Francisco Immigration Court, and the San Francisco Immigration Court re-opened and terminated our client’s case on March 3, 2015. Now he can file for adjustment of status and work permit with the CIS.