Kolken & Kolken. Results-oriented immigration lawyers - specializing in Green Card, Deportation Cases and Temporary Visas.

Deportation Prevented

Published: Dec 8, 2008 Source: My Source

Our client is a citizen of Switzerland. She is an ordained minister. She entered the United States legally as a student. Her church filed a Petition for Religious Worker seeking to employ her as a minister on a permanent basis. There is a regulation that prohibits concurrent filings of religious worker petitions along with applications to adjust status. USCIS waited until our client was out of status for more than 180 days before they approved the church’s petition. Our client then filed her application to adjust status.

The application was denied because she was no longer a student and therefore out of status for a time longer than permitted, and USCIS instituted deportation proceedings against her to obtain an order of deportation. We were then retained.

After conducting legal research, we ascertained that there was a national class action lawsuit involving whether the regulation was in conflict with the Immigration and Nationality Act. The lawsuit had been filed in a U.S. District Court located in Seattle, Washington.

The U.S. District Court Judge handling the case granted a temporary injunction prohibiting the accrual of unlawful presence pending his decision in the case. The issue is identical to the issue to be determined in our client’s case. Moreover, our client is a member of the class covered under the class certification issued in the Washington case.

We were able to obtain the consent of the attorneys for the Department of Homeland Security to administratively close this proceeding pending a final determination in the national class action. The Immigration Judge granted our request after hearing oral argument in open court. Administrative closure is a process where a case is taken off an Immigration Court’s active calendar pending a disposition of another event. The client is still subject to Immigration Court proceedings, which are stayed until the case is restored to the active calendar. An Immigration Judge cannot order administrative closure without the consent of both parties. Consent of both parties does not automatically mean that an Immigration Judge will order administrative closure.

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