World Journal Weekly on January 14, 2007 Published Mr. Lee's Article - "THE IMPORTANCE OF KNOWLEDGE AND PATIENCE IN IMMIGRATION LAW "

By Alan Lee, Esq.

Aliens many times go to immigration consultants and lawyers who are not well versed in or appreciate the alien's particular situation. They many times give ill-fated advice or encourage action without full knowledge of the law or for other reasons. In many cases, not filing a case is better than filing a case. The four situations outlined below represent some of the cases on which we were consulted recently. The answers reflect our opinions which were conveyed to the individuals.

Question #1.

New Rule Allows Arriving Aliens with Final Orders to Adjust Status – But Their Attorney Must Be Completely Familiar with Rule Because of Dangers

I tried to sneak in from Kennedy Airport in 1/1992, but unfortunately I was arrested. Not long after I was paroled. In the same year of November, my U.S. citizen sister applied a I-130 for me. But after my release, I applied the political asylum but it was denied in 1999 by a judge. I appealed it and was denied in 2002. In 2006, I tried to reopen my case but it was also denied. The application’s (filed by my sister) priority date is current, should I file for adjustment of status? Can I go for interview? Will I get arrested?

Dear reader:

Immigration issued an Interim Rule on May 12, 2006, withdrawing the regulation on the prohibition against paroled "Arriving Aliens" adjusting status to permanent residence and I believe it is a good rule. In your situation, since you are paroled, you may be able to adjust status here in the U.S.. However, since this is a fairly new rule, you should be accompanied by your attorney when you go for interview. As a matter of course in our cases, we submit a memo of law with a copy of the interim rule to an examiner. Under this new rule, you should not be arrested if you are truly qualified. Of course your attorney should ensure that you are completely qualified under this rule to negate the possibility of detention.

Question #2.

Patience May Be the Better Course for Alien Married to Green Card Holder

I sneaked into the U.S. in 2003 without any problem. Later, I married my wife who has a green card. We consulted many attorneys and were told that my wife could apply I-130 for me. Therefore, I applied. Was it a wise decision? Do I have any risk? Can I apply for a green card?

Dear reader:

At this time, your I-130 application through your permanent resident wife may not do you much good as the petition of a permanent residence spouse takes years (currently only processing green cards for those with priority dates before 3/15/02) and you are barred from adjusting status in U.S. because of your illegal entry unless you otherwise qualify under §245(i). In the latest manifestation of 245(i), applicants are allowed to adjust in the U.S. upon payment of a fine (currently $1,000) if they have filed labor certification or immigrant visa petitions by 4/30/2001 and prove that they were physically present in the U.S. on 12/21/2000. The I-130 petition filing might in fact be a little risky as a new USCIS memo indicates the possibility of notices to appear (NTAs) in the immigration court being issued in this situation. For safety’s sake, other readers may choose to wait if the spouse is well able to pass a naturalization test. In that situation, when the spouse becomes a U.S. citizen and if there is a new law allowing illegal immigrants to either adjust status or travel overseas without fear of the 10 years or 3 years bars upon reentry, such might be a better time to apply.


Question #3.

Patience May be the Better Course for Fujian Native with 2 Children Seeking to Reopen Asylum Case

I am from Fujian, China. I sneaked into the U.S. in 2000 and was arrested. The next year, I applied for political asylum. Before the Immigration Court, the Judge caught me lying multiple times and at the end, I had to admit that I did lie. Therefore, my application was denied. Currently, I am married with 2 U.S. born children. My husband is also illegal here. I want to reopen my case and apply for green card. Do I have any chance?

Dear reader:

New York’s 2nd Circuit Court of appeals remanded a case recently to the Board of Immigration Appeals for study concerning an illegal alien from Fujian province with two children. The Board of Immigration Appeals is to decide this case. The question is whether you should move to reopen your case now or not. I suggest that you wait for the decision of the pending case. If the BIA decision is favorable to the alien, there is a possibility that you could then move to have your case similarly reopened for asylum based on the one-child policy. I believe that there would be time given to people in that situation to reopen, and so my question is whether you really want to take action now when the downside could be further legal expenses and denial. In your situation, even if the BIA rules favorably on the pending case, there would have to be a careful reading of the entire decision to see whether the BIA addresses the subject of the effect of lies in earlier applications.

Question #4.

Patience in Obtaining Copy of File May be the Better Course to Filing Motions Indiscriminately Without Knowledge of What is on Your File

When my parents were allowed to immigrate to the U.S., I was over 21 years old and aged out. Later, I sneaked into the U.S.. from the border, but was arrested. Right now, I was told that I have a deportation order. I consulted with an attorney and was told that he could help me but failed. I am not too clear about my case, have no documents and could not find my prior attorneys to obtain copies. Can you help me?

Dear reader:

I suggest you file a “Freedom of Information Act” request to obtain your records with USCIS and the Immigration Court. Perusal of your file can allow your attorney to see if there are any other unfavorable matters in your file of which you may be unaware and which may negatively affect any further actions. With full knowledge of your case, your attorney can rationally decide the best strategy for you. Without knowledge, your attorney would be in effect filing papers in the dark.


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 © 2007 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.