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

Deportation Reopened and Remanded: Court Closes Case to permit Client to Apply for Green Card

Published: Jan 10, 2013 10:00 am By: Matthew L. Kolken

Our client is a male 36 year old citizen and native of Peru. He was admitted to the United States at Miami, Florida in 1994, as a nonimmigrant in transit without visa (TWOV) with authorization to remain in the United States for a temporary period not to exceed eight hours or until the next available transportation. He remained in the United States beyond that period without authorization from the legacy Immigration and Naturalization Service.

In 2006, the Department instituted removal proceedings under INA §237(a)(1)(B) for remaining in the United States for a time longer than permitted. This was the only charge of removal. Jurisdiction was vested with the Immigration Court at Buffalo, New York. The client decided to hire a lawyer in New York to represent him before the Court making multiple payments.

The Record of Deportable/Inadmissible Alien that was prepared by the Department specifically set forth that Government attorneys were contacted who advised that the client “might be eligible for cancellation of removal under INA Sec. 240(b)." The Form I-213 further indicated that the client may be eligible for asylum. The former lawyer had this evidence in his possession.

The lawyer in early 2007 filed a motion with the Immigration Court in Buffalo, New York requesting a change of venue and permission to appear telephonically. In making this motion the lawyer conceded the allegations contained in the Notice to Appear, admitted that the client was a nonimmigrant in transit without visa (TWOV) that last entered the United States in early 1994, and specifically indicated to the Court that the Respondent appeared eligible for cancellation of removal, withholding of removal, or alternatively, voluntary departure.

In mid 2007 the client married his United States citizen spouse in New York. At this point the Respondent had a qualifying relative that rendered him eligible for Cancellation of Removal as a non-lawful permanent resident, potentially eligible for adjustment of status under form INA 245(i). The former lawyer had actual knowledge of the existence of a qualifying relative for cancellation of removal.

In late 2007, the client appeared at the Immigration Court in Buffalo, New York without his lawyer who was permitted to appear telephonically by the Court. The lawyer’s associate telephonically appeared instead. The associate again conceded the client’s removability, and requested voluntary departure as the only form of affirmative relief from removal. He did not request asylum, withholding of removal, cancellation of removal, or adjustment of status.

An individual hearing was scheduled for early 2008 in Buffalo, New York. The lawyer then prepared and filed a Form I-130, Immigrant Petition for Alien Relative, together with a Form I-485, Application for adjustment of status on the client’s behalf. He did nothing to correct his associate’s error in court. The client is eligible to adjust status under form INA § 245(i) due to the filing and subsequent approval of a Form I-130, Immigrant Petition for Alien Relative filed by his United States citizen brother.

The client next appeared at the Immigration Court in 2008, and although the lawyer was permitted by the Court to appear telephonically he did not make himself available.  The Court admonished him through the lawyer’s associate who telephonically appeared on his behalf and who was completely unprepared for the case.

The Judge granted voluntary departure ordering that he depart the United States in early 2008. The Court further imposed a $10,000.00 voluntary departure bond with a posting date. The Court in the alternative ordered the Respondent’s removal. Nothing was done by the associate to request cancellation of removal, asylum, withholding of removal, or potentially adjustment of status as affirmative forms of relief from removal, and solely relied on voluntary departure as the only basis for relief from removal.

After the individual hearing the client called the lawyer who advised him that he would appeal the Court’s order. The client provided the lawyer with the $110.00 filing fee for the Notice of Appeal. In late 2008, the immediate relative immigrant petition filed on the client’s behalf was transferred to the Albany, New York office for further processing, but the lawyer never advised the client of the transfer.

The Board of Immigration Appeals dismissed the appeal in late 2010, stating that the client had failed to establish prima facie eligibility for adjustment of status. This failure was directly attributed to the ineffective assistance of the lawyer to provide sufficient proof of eligibility for adjustment under former INA §245(i). The Board’s decision didn’t reference the Respondent’s eligibility for cancellation of removal, asylum or withholding of removal.

In late 2010 a second lawyer was hired who filed a Petition for Review with the United States Court of Appeals for the Second Circuit challenging the order of removal entered by the Board.

We were retained in November 2010.  Our first move was to thoroughly review the case to determine what if any errors existed.  After determining that our client's previous lawyer and his firm had provided ineffective assistance that resulted in our client's deportation, we immediately filed a complaint with the Department Discipline Committee (DDC), Supreme Court, Appellate Division, First Judicial Department, located in New York, New York.

A complete copy of the Respondent’s complaint was provided to the former lawyer to give him a fair opportunity to respond. Ultimately, nothing happened with this complaint.

We then filed a motion to reopen with the Board of Immigration Appeals, together with applications for relief from removal. The Board granted our motion, remanded the case back to the Immigration Court, and the Court disposed of the case via administrative closure to allow for our client’s priority date to become current, which it likely will upon the release of next month’s Visa Bulletin.

Once the priority date becomes current we will file a motion to re-calendar the case, together with a motion to dismiss proceedings to permit our client to apply for his Green Card with the Department.

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