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Second chances? Reopening a deportation hearing

By Atty. Paul Choi

Paul Choi is an immigration attorney practicing in Encino, California. As a public service, he will answer all questions regarding immigration and naturalization for free either by mail, email at pchoi@pchoilaw.com, on the phone, or in person or you may contact his administrator, Philip Abramowitz at 818 714-2226, or pabramowitz@pchoilaw.com. The following is one such question and the answer by Mr. Choi.

Question: I was petitioned for immigration by my husband but at the time of the interview our answers to the officer’s questions did not match and the case was sent for investigation. While under investigation, my husband moved out and filed a divorce. My case was denied and I was put in removal proceedings. I hired an attorney who went to court with me and he told me there was nothing he could do for me. The judge ordered me deported in 2002, but I never left. I just hid and hoped the INS would not get me. I am now married to a U.S. citizen. Is there any way that she could help me obtain permanent residence? What can I do? I very much want to stay in the U.S. but I am afraid I will be deported.

Answer: You have described a very sticky situation. Typically, persons who are placed in deportation or removal proceedings are given the right to see an immigration judge. During a hearing before the judge, aliens can fight the charges filed against them or they can seek relief such as political asylum, adjustment of status or even sometimes permission to just leave the U.S. voluntarily.

In your case, since your husband divorced you, filing for permanent residence was no longer an option unless you could show that you were the victim of physical or mental abuse and that you could self-petition or that you had a new petition filed for you by a second spouse. However, since you were ordered deported, the decision of the judge is final unless you appealed.

You ordinarily cannot come back to court years later and ask for new relief. Immigration regulations state that persons have just 90 days to go back to a judge and seek reopening of their case for new evidence or reconsideration of the court’s decision. Once that 90 day period is up, any motion to reopen or reconsider is untimely and will probably be denied.

There is an exception to this strict rule. Immigration regulations state that the court can reopen a deportation hearing even though more than 90 days have passed since the order was entered, if the government attorney agrees to join in the motion to reopen proceedings.

So, in your case, now that you are married to a citizen you may be eligible for adjustment of status to permanent residence and can ask the court to grant you this relief provided you can get your case reopened. This means that you must seek the permission and agreement of the USCIS attorney to let the judge hear your motion to reopen your deportation case. If the USCIS agrees to join in your motion to the court, there is a good likelihood that the judge will grant your request and reopen your case.

If your case is reopened the judge can then consider your request to obtain permanent residence or even terminate your deportation proceedings and permit you to just submit your application for permanent residence with the local USCIS office.

Before seeking reopening remember that you must obtain the agreement of the USCIS to join in your motion. It is not guaranteed that the government will agree to reopen the case, but with a proper presentation of your facts and evidence, there is a good chance of obtaining this relief.

I am happy to state that we have successfully filed motions to reopen removal proceedings months or even years after clients were ordered removed and were successful in having proceedings terminated so that clients could obtain permanent residence. However, past success is not a guarantee of future success so you should be advised to consult with an experienced immigration attorney for an evaluation of your case before proceeding. A denial of a motion to reopen could result in your arrest and deportation. However, a successful reopening of your deportation case can give you a second chance at life in the U.S.

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Atty Paul Choi will answer all questions regarding immigration, naturalization and deportation defense for FREE. Contact him at pchoi@pchoilaw.com or at 818 714-2226. He is located at 16000 Ventura Blvd, Ste. 1201, Encino, California 91436.

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