CASE: Motion to Remand based on Pending I-130 Petition
LOCATION: Chicago, IL
Our client came to the United States with a valid J-1 visa from Romania in July 2002. He remained in the United States for a time longer than permitted.
Later on, he was placed in removal proceedings due to his overstay and a Notice to Appear was issued. His cancellation of removal application was denied by the Immigration Judge in April 2011, but an appeal was timely filed. The BIA appeal was denied March 15, 2013.
While the BIA appeal was pending, our client married his U.S. citizen wife in September 2012. His wife filed an I-130 petition for our client on November 5, 2012. He contacted our office for legal assistance for a Motion to Remand. We explained to him the Motion to Remand procedure and he retained our office on April 1, 2013.
On April 5, 2013, we prepared and filed the Motion to Remand for Adjustment of Status Based on a Pending I-130 on behalf our client. We had to file this Motion within 90 days of the Board decision to make it timely. 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, even though it is still pending, 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, adjustment of status relief was not available for our client at his previous hearing since he was not married to his U.S. Citizen wife.
Our office filed a Motion to Remand for Adjustment of Status based on a pending I-130 to the BIA on April 5, 2013. 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.
We also attached a lot of bona fide marital evidence between our client and his U.S. citizen wife to demonstrate that the I-130 petition was approvable. Eventually, on May 30, 2013, the BIA granted our motion, reopened our client’s case, and the record was remanded for further proceedings.
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