Website Q & A - October 3, 2007
Factors in Deciding Whether to Attempt to Reopen an Old Deportation Order
Dear Mr. Lee,
I and my parents went to the United States in 1995 from Indonesia
under a tourist visa. I was only 13 at the time, but my dad applied
for political asylum for all of us and the case was lost in the
immigration court in 1996. The immigration judge gave us voluntary
departure until January 1997. My father has a labor certification
pending under the employment third preference since April 2001 which
would make him eligible for section 245(i). My fiancee is a U.S.
citizen and we are thinking of being married in the next three months.
Can we reopen our cases ?
Because of your age at the time the proceedings, you would present
much more appealing circumstances for reopening of your case upon
your marriage to a U.S. citizen than your parents. This is of course
assuming that the marriage is bonafide. At such age, you were not
legally capable of making up your own mind as to request for or
violate the voluntary departure order. With your father's situation,
he should determine what is happening with his labor certification
application at this time as the Department of Labor has by and large
completed its backlog of cases. Assuming that he later has the labor
certification approved, he would have a much harder time convincing
the U.S.I.C.E. district counsel's office to agree to reopen his
case because of his violation of the voluntary departure order.
Motions to reopen proceedings by right must be done within 90 days
of the order or else are generally considered untimely and require
the agreement of U.S.I.C.E. unless there are exceptional circumstances
that would move the immigration judge or the Board of Immigration
Appeals to reopen.