As many of you know, a bona-fide marriage to a US Citizen is
one of the few means of legalizing one's status still available
to an alien in deportation proceedings. A common problem occurs
when the alien has been ordered deported, has timely appealed
that order (to preserve his/her rights) but the appeal results
in an adverse determination before the marriage-based petition
is approved. A schematic rendering of the fact pattern above is
as follows:
Fact pattern:
Day 1 - Alien is ordered removed/deported by an Immigration Judge;
Day 2 - Alien appeals the judge's decision to the Board of Immigration
Appeals ("BIA");
Day 3 - Alien, while in removal/deportation proceedings, marries
a U.S. citizen;
Day 4 - Alien files the Alien Relative Petition (I-130) and Adjustment
of Status application (I-485) with the Immigration and Naturalization
Service ("INS"); and
Day 5 - Before the alien's I-130 application is approved by the
INS, the alien's appeal to the BIA is dismissed (i.e. the judge's
order is affirmed.)
Legal Issue:
Is the alien eligible to apply for Adjustment of Status (i.e.
Green Card) given the fact that his appeal was dismissed and as
a result he now has a final order of removal/deportation against
him, while his I-130 petition has yet to be approved?
Answer:
Under the BIA's recent holding in In Re Velarde (BIA, 2002) the
answer is YES, under certain conditions.
Explanation:
The BIA has previously held that once a removal/deportation order
becomes final (i.e. the alien's appeal is dismissed by the BIA),
an Adjustment of Status application based upon the alien's marriage
to a U.S. citizen after the commencement of the removal/deportation
proceedings could not be considered, where the I-130 petition
filed by the U.S. citizen spouse was not already approved by the
INS. Matter of Arthur (BIA, 1999)
However, the BIA, in its recent In Re Velarde holding, adopted
the following rule:
An application for Adjustment of Status based upon the above-mentioned
facts can be
considered by the INS under the following circumstances:
Timely Motion to Reopen is filed with the BIA - within 90 days
of BIA's decision to deny alien's appeal;
Alien is not barred on other independent grounds from obtaining
a Green Card (e.g. overstay of Voluntary Departure order; criminal
convictions; etc.);
Clear and convincing evidence that the marriage is bona-fide
and not entered into for immigration purposes; and
INS does not oppose the Motion to Reopen.
This new standard is an obvious improvement of the old, strict
and anti-immigrant standard. However, it does call for specific
deadlines by which to file the Motion to Reopen (90 days after
the BIA's final order) and certain levels of proof relative to
the good faith nature of the marriage.
Moreover, this decision does not affect the situation of those
aliens who have a final order of removal/ deportation; who never
filed a Motion to Reopen: and who subsequently marry a U.S. citizen.
Those aliens must file the appropriate petitions with the INS
and subsequently must file a proposed Joint Motion to Reopen with
the INS' local litigation unit (i.e. INS attorneys). Thus, only
if the INS attorneys consent to the reopening of the case can
the alien apply for Adjustment of Status. Such consent is a matter
of discretion with the local INS office and cannot be relied upon
with certainty. It will vary from case to case and depend to same
extent on the persuasive powers of the alien's attorneys, who
have to convince the INS to consent to the motion.
The thing that is important to remember is that even where a
deportation order has been entered, in some cases there is still
hope, but there are strict time deadlines that must be observed.
As always, the law firm of Popescu, Iosepovici & Associates continues
to provide updates of the latest immigration rules and laws relevant
to members of the Romanian-American community. We hope that our
readers realize that articles such as this cannot and should not
replace a one-on-one meeting between an attorney and the client,
in which a client's particular legal issues are reviewed and analyzed
and a comprehensive strategy is developed and implemented.
Armand Fried, Zamir Iosepovici & Robert Popescu
