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

Deportation Prevented and Green Card Obtained

Published: Feb 23, 2009 Source: My Source

Our client is a Sikh and a citizen of India. He is married to a United States citizen and has two United States citizen children. When we were retained in December 2005, the Department of Homeland Security was in the process of deporting him to India. We immediately prepared an Order To Show Cause and a petition for Writ of Habeas Corpus, which we had signed by a U.S. District Court Judge in New Jersey, and which stayed his deportation pending the Judge’s decision in the proceeding, and we served the Order. Our client had been put on a plane preparing to take off for India at the time. The Department of Homeland Security was required to remove him from the plane.

The client was subject to a Final Order of Deportation as a result of his withdrawing his Application for Asylum in return for Voluntary Departure, which he justifiably failed to honor in 1998. At the time, the client was married to his first United States citizen wife, which fact was disclosed to the Immigration Judge. She filed a petition for him shortly after the Voluntary Departure Order was issued. Although the attorney for the Immigration and Naturalization Service was aware that the petition had to be adjudicated quickly, it was not approved until ten days after the 90 day time period for filing Motions To Reopen had elapsed.

Although the petition was approved well within the Voluntary Departure period, the INS attorney refused to join in on the Motion To Reopen, which was denied by the Immigration Judge because it was not made within the 90 days of issuance of the Voluntary Departure Order, notwithstanding the fact that the Immigration Judge and the INS attorney knew that the Application for Asylum had been withdrawn in anticipation of a timely approval of the wife’s petition. By the time the Motion To Reopen was denied, the Voluntary Departure period had elapsed and the Voluntary Departure Order had automatically converted to an Order of Deportation.

Because he did not have lawful status, he was unable to obtain Employment Authorization. Financial difficulties resulted, which led to marital difficulties. The parties divorced after four years of marriage, and he subsequently married his present wife. They have a stable and loving relationship and there are two United States citizen children born of the marriage. His present wife is a United States citizen. She filed a petition for him, which was approved.

As a result, the client could apply to adjust his status to lawful permanent resident if the Immigration Court proceeding could be reopened. In 2005, the client then attempted to legalize his immigration status. He retained an attorney who prepared an extensive and persuasive Motion to Reopen his Deportation Order, and asked the attorneys for the Department of Homeland Security to join with him in requesting the Immigration Judge to reopen the Immigration Court proceeding.

The law requires the consent of the Government when you make a Motion To Reopen beyond 90 days of the issuance of an Immigration Court Final Order, and when more than one Motion To Reopen has been made. The Department of Homeland Security’s response to the request for them to join in the Motion To Reopen was to arrest the client and attempt to deport him to India, at which point we were retained.

The United States District Court Judge in Newark, New Jersey conducted a hearing to determine whether the client’s rights had been violated by the Government under the circumstances presented. We represented the client at the hearing and apprised the Court of the facts of the case and set forth our legal arguments. The United States District Court Judge ordered that the Immigration Court proceeding be reopened and remanded the case to the Immigration Judge.

We moved to terminate the Immigration Court proceeding to allow United States Citizenship and Immigration Services to adjudicate the Application for Adjustment of Status. Our motion was granted and the Immigration Court proceeding was terminated.

We then filed the Application for Adjustment of Status with USCIS. Because we were unable to prove that the client was inspected and admitted to the U.S., we utilized an expired provision of the law which forgave his immigration problems upon payment of a $1,000.00 penalty.

For the client to be eligible, we grandfathered his eligibility based upon his first USC wife’s petition. We again travelled to Newark, New Jersey to attend the adjustment interview. The client was fully prepared and additional documents in support of the application were presented. The client’s application was approved and he is now a lawful permanent resident of the United States.

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