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.
|