A nonimmigrant
lawfully in the United States may adjust his/her status to that of a person
admitted for permanent residence pursuant to Section 245 of the Immigration and
Nationality Act.
What if the alien applies and receives a
notice stating that the application for adjustment of status is denied and that
no appeal lies from the denial, although the applicant may renew the
application in removal proceedings. Que
horror! What should the alien do?
I just came from a meeting with the top
brass of U.S. Citizenship and Immigration Service (USCIS) in Honolulu today
(March 10). Here are the possible options: (1) do nothing, (2) ask USCIS to
issue a Notice to Appear (NTA) before the Immigration Court, or (3) file a new
adjustment application. No mention was made of filing a motion to reopen or
reconsider. No discussion was made of the details of each option.
You will need an excellent lawyer to
evaluate each option and how it could apply to your case.
Do
nothing
The
alien could do nothing and nothing will happen to the alien for the nonce. The
USCIS’ priority is going after criminal aliens. Eventually they will come to
the alien and place the alien in removal proceedings.
Meanwhile, the alien is in limbo like those
without status or TNT (tago ng tago),
except that the alien’s whereabouts are known to USCIS. What if the alien
hides? The Notice to Appear will be sent to the alien’s residence last known to
USCIS. It is as good as if the alien had received the notice. If the alien does
not appear at the hearing before the Immigration Court, the Judge will order
the alien removed in absentia.
If the alien does nothing, what if the
petitioner dies? The petition also dies, subject to certain exceptions.
Ask USCIS
to issue NTA
If
the alien goes to USCIS and tells them “Deport me. Issue a Notice to Appear
against me.” That is “bearding the lion in his den.” USCIS will generally but
not necessarily oblige. They have other priorities. If there are a hundred
criminal aliens roaming around, they will go after them first. It is like a traffic
cop. He sees you speeding but there is a huge traffic accident ahead of you,
with cars burning and ambulances wailing. The cop will not bother with you.
There is a lawyer who wrote to USCIS twice to issue an NTA against his client.
More than a year has elapsed but USCIS has not acted on his request. The alien
did not know about the request until another told him about it.
What if USCIS calls your bluff and issues
an NTA on the spot. Depending on the ground for the denial of adjustment, they
might even place you in detention.
Before you do this, consult with an
excellent attorney who knows how to analyze your case and has the skill to
overcome the denial.
In a reported case, an attorney brought his
clients to the old INS and asked them to issue an NTA. They granted his wish.
At the Immigration Court, the judge told the lawyer that the law granting the
relief he was asking was amended by imposing additional requirements that the
aliens could not meet. The aliens were ordered deported. The aliens charged the
lawyer with ineffective assistance. The court held that ineffective assistance
must occur during removal proceedings not before in order that the aliens could
avail of such defect.
File a
new adjustment package
The
law does not prohibit the alien from filing a new adjustment package and paying
a new filing fee. The alien would undergo the same process as in the first
application. The alien would have to overcome the grounds for the denial of the
first application for adjustment. For example, if the first adjustment
application was denied because of discrepancies in the testimonies of the alien
and the spouse, such as the last time they had sexual relations, they should,
at the second interview, be able to agree on the date and time. If they fake the
date and time, it must be the same.
File a
motion to reopen or reconsider
The
law says there is no appeal from the denial of an adjustment. It does not say
the alien cannot file a motion to reopen or reconsider. We have done this a
number of times. Be sure the lawyer you hire knows the difference and has the
evidence and authorities to support the motion. If the motion is denied,
consider any of the three preceding options.
(Atty.
Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws
degree from the University of the Philippines. He specializes in immigration
law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI
96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com,
http://www.Hawaiimigrationattorney.com. He is from
Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He
is co-author of “Immigration Law Service, 1st ed.,” an 8-volume
practice guide for immigration officers and lawyers. Listen to the most funny,
interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every
Thursday at 7:30 a.m. This article is a general overview of the subject matter
discussed and is not intended as legal advice. No attorney-client relationship
is established between the writer and readers relying upon and/or acting
pursuant to the contents of this article.)
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