World Journal Weekly Q & A - May 3, 2009

Q & A 1. 2.

Q&A 1.

Husband Had Bad Lawyer, Took Voluntary Departure, Did not Leave, Was Arrested and Deported; Had Approved Labor Certification, Was Eligible for 245(i) and I Am a U.S. Citizen. What Are the Chances If We Appeal to the Circuit Court?

Chen Reader:

In December 1997, my husband was young and didn’t know much about U.S. law and culture, he hired a bad lawyer, (this attorney’s license got suspended) which caused my husband to received a voluntary departure order to leave U.S in 90 days. In 2001, my husband’s labor certification application was approved and waiting to adjust his status. He had applied 245(i) back then. But we understood he still couldn’t erase his bad record from Immigration.

In May 2008, ICE arrested him, despite of hiring an expensive/well-known “Wall Street” attorney and filed I-130, I-485 ( I was naturalized to be an U.S. citizen in 2008) and reopen, he was still sent back to China in November 2008.

Now, our attorney wants us to appeal the case to Circuit Court and said it was a strong case. What should I do? Can you recommend a good attorney to me?

Dear reader:

I cannot agree that your husband has a strong case for Circuit Court review merely based on your set of facts. Initially review in the Circuit Court must be done within 30 days of a final administrative order. If your husband's case was not filed in federal court on a timely basis, such would preclude Circuit Court Review. On the question of suing in the district court under habeas corpus, that is already too late if it was not instituted during the time that your husband was in custody.

In addition, the grounds upon which the suit would be instituted as described in your letter do not appear to be particularly strong. There is much doubt as to the viability of an ineffective assistance of counsel claim after the recent decision by the ex-Attorney General, Michael Mukasey, Matter of Compean-Bengaly-JEC-, just prior to leaving his office, and the fact that your husband's labor certification application was approved and he was waiting to adjust status, and that you had later filed a petition for him requesting adjustment of status also based upon your being a U.S. citizen would appear to be largely discretionary action requests which are generally not reviewable in the federal courts.

Q&A 2.

I Am not Able to Financially Sponsor My Wife for Immigration and My Sister Has Reneged on Her Promise. What Can I Do?

Liu reader asks:

I am 58 years old and immigrated from Guangdong in 1990. In 2000, I had a stroke and could no longer use my right hand. I was naturalized in 2002. In 2004, through a friend’s introducing, I went back to Guangdong and married my wife. In 2006, I applied for my wife to come to the U.S. Everything was smooth, until I had to do the affidavit of support. I asked my biological sister for help (her husband is white), she asked me to give her $2,000. I mailed her a check on 12/25/2007. 4 months later, she mailed me back the form. The person who did the filing for me said the form was incorrect written, including my wife’s name. I called her and told her that I would fill out the form and mail her for signature. But since August 2007, I have not heard back from her. My questions are:

1. Could I resolve the issue concerning my sister through law?
2. I only have one sister in the U.S.. I have no other families or friends. How do I sponsor my wife? Is there any other ways I can do it?

Dear reader:

1 You cannot force your sister to fulfil the bargain to support your wife. Whether you can successfully sue your sister back for the $2,000 will probably come down to a question of fact as to why you gave her the money.

2 A family based case requires a binding affidavit of support. If you have no other family or friends, you will not be able to fulfill the support obligation unless you yourself have enough income and assets or your wife has independent assets which can be used.

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.