News Update - March 28, 2009

By Alan Lee, Esq.^†‡

Recent Circuit Court Cases

5th Circuit – A judge in the Fifth Circuit denied a petitioner’s request to reopen proceedings and rescind the order of removal that was entered against him in absentia for failing to appear at his removal hearing. The petitioner argued that he never received the required statutory notice of his hearing date and therefore the BIA’s decision to deny his motion to reopen his proceedings was an abuse of discretion.

The Notice of Hearing was sent to the petitioner’s last address and was returned to the immigration court stamped “attempted, not known. While conceding that a returned notice with the stamp “attempted, not known” demonstrates that the notice was not actually received, the BIA determined that an immigrant is not automatically entitled to the rescission of a removal order for failure to receive a hearing notice, regardless of the reason for the failure. The Fifth Circuit Court upheld the rule of at least three other circuit courts that “an in absentia removal order should not be revoked on the grounds that an alien failed to actually receive the required statutory notice of this removal hearing when the alien’s failure to receive actual notice was due to his neglect of his obligation to keep the immigration court apprised of his current mailing address.” Gomez-Paloacios v. Holder, No. 07-60938, (5th Cir., 2009).

3rd Circuit – The Third Circuit upheld the USCIS’s determination that a Jamaican citizen who was married to a U.S. citizen for less than two years prior to his death could no longer be considered an “immediate relative,” thus terminating her I-130 petition upon her husband’s death. The immigrant entered the U.S. on January 14, 2002 as a non-immigrant visitor and married a U.S. citizen in February 2003. In March 2003, he filed a Petition for Alien Relative, I-130 on behalf of his wife as an “immediate relative” and she filed an I-485 to adjust her immigration status to LPR. He died on October 15, 2003 and USCIS automatically terminated her I-130 petition because she was no longer an “immediate relative” within the INA because her husband’s death occurred before the couple had been married for 2 years. After filing a complaint, the U.S. District Court for the District of New Jersey set aside USCIS’ determination, declared her an “immediate relative,” and ordered USCIS to process her I-130 petition and I-485 application. The Government appealed this decision. The Third Circuit overturned the district court’s decision, holding that “eligibility for an immediate relative visa depends upon the alien’s status at the time USCIS adjudicates the I-130 petition, not when that petition was filed” and that “a spouse ceases to be an immediate relative when the citizen spouse dies unless the couple has been married at least two years at the time of death.” Osserritta Robinson v. Janet Napolitano, No. 07-2977 (3rd Cir., 2008).

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2009 Alan Lee, Esq.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.