Immigration Court Filings Archives - Immigration Attorney in New Jersey

Motions to Reopen

It is important to advise the reader that filing a motion to reopen is no easy task. Motions to reopen is a very complex area in the practice of immigration law.

A motion to reopen removal proceedings in immigration court may be based on one of several reasons. First, the person did not receive proper notice of the immigration court proceedings, and s/he was ordered deported in absentia. Second, the individual failed to attend an immigration court hearing due to exceptional circumstances and was ordered deported. Third, the individual was ordered deported after a trial; however, since the deportation order new evidence has become available that warrants new consideration of the alien’s case.

What is a Motion to Reopen?

Motion to Reopen is a special petition filed with the immigration court to reopen an old immigration case in order to go back to immigration court and apply for an immigration relief, if available.

Who may file Motions to Reopen?

Motions to reopen may be made by either party or by the court on its own motion. 8 C.F.R. §1003.23(b). A party however, must move to reopen within 90 days of a final administrative order, with certain exceptions. The motion to reopen must be in writing and filed with the court having administrative control over the record of proceedings. 8 C.F.R. §1003.23(b)(1)(i)-(ii).

In each of these scenarios it is absolutely crucial to have an experienced and knowledgeable attorney with excellent writing and research skills prepare the Motion to Reopen. In most instances, the individual, who has been ordered deported, is permitted only one motion to reopen; therefore, it is exceedingly important to get it right the first time.

In Absentia Motion to Reopen

When a person fails to attend an immigration court hearing, the immigration judge will order the individual removed. Oftentimes, the person fails to attend the immigration court hearing because s/he never received the notice of the hearing date. Perhaps the individual changed addresses recently. Maybe US Citizenship and Immigration Services made a mistake and sent the notice to the wrong address.

Either way, if the individual proves that s/he did not receive notice of the hearing in accordance with INA § 239(a)(1) or (2), the case should be reopened. INA 239(a)(1) requires that the Notice to Appear state the time and place at which the immigration court hearing will be held. INA 239(a)(2) states that a written notice of change in time or place of proceedings must be provided to the individual or the individual’s counsel of record via mail or personal service. Oftentimes it is important to review the immigration court file regarding the deportation order before filing the motion to reopen. This will allow the attorney to better understand why the individual did not receive the notice of hearing, and the attorney will be able to prepare a more persuasive motion to reopen.

If the deportation order was entered in absentia, the filing of the motion to reopen stays the execution of the removal order automatically. This means that filing the motion to reopen prevents immigration officers from coming to your house and deporting you. A motion to reopen an in absentia removal order does not require a fee. 8 CFR §1003.24(b)(2)(v). If the individual did not receive proper notice of the hearing, the motion to reopen may be filed at any time. However, if the motion to reopen is because the individual was unable to attend the hearing due to exceptional circumstances, the motion to reopen must be filed within 180 days of the removal order.

Motions to reopen based on failure to attend due to exceptional circumstances beyond the control of the individual are very specific motions. Generally, the individual must prove that s/he was unable to attend the hearing because s/he was seriously ill, a death in the family occurred or a severe accident occurred while traveling to the immigration court. Other reasons may be sufficient to warrant a reopening, but the reason must not be any less compelling.

Motion to Reopen Based on New Evidence or Facts

Sometimes, after an individual is ordered deported, new facts or new evidence emerges which makes the individual eligible for a form of relief from deportation. In these cases, the motion to reopen must be filed with the Immigration Judge or the Board of Immigration Appeals depending on which has administrative control over the proceedings. The individual must prove to the court that the new evidence sought to be offered is material and was not available and could not have been discovered or presented at the earlier hearing. In these cases, the motion to reopen must be accompanied by the appropriate application for relief.

All motions to reopen should be handled by an experienced and knowledgeable attorney with excellent writing and research skills. The motion must contain specific language and persuasive legal arguments.

Joint Agreement

This is when both parties agree to reopen the case and file jointly. Both parties would be the individual and an Attorney from the Office of Chief Counsel.

The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.

If you would like more information please contact us at 908-442-6792.

DACA – Deferred Action for Childhood Arrival

Deferred Action means that U.S. Immigration officials will not place you in removal proceedings, so long as you do not commit crimes or pose a threat to the security of the country.

If you qualify for Deferred Action for Childhood Arrivals (DACA), then you would be eligible for a period of two (2) years, and you could apply to renew the Deferred Action. If you qualify, you will also be eligible to receive Employment Authorization while you have Deferred Action.

You might be eligible to apply for Deferred Action for Childhood Arrival (DACA) if:

you were under the age of 31 as of June 15, 2012;
came to the United States before reaching your 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

It is usually advisable to obtain a competent immigration attorney to provide legal representation.

If you would like more information please contact us at 908-442-6792.

Refugee/Asylum

Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.

Refugee

Refugee status is a form of protection that may be granted to people who meet the definition of refugee and who are of special humanitarian concern to the United States. Refugees are generally people outside of their country who are unable or unwilling to return home because they fear serious harm.

The Immigration and Nationality Act defines “refugee” in Sec. 101(a)(42) as:

(A) any person who is outside their country of origin/nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or

(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

A person may seek referral for refugee status only from outside the United States. Under United States law, a refugee is someone who:

Is located outside of the United States;
Is of special humanitarian concern to the United States;
Demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group Is not firmly resettled in another country; and
Is admissible to the United States

A refugee does not include anyone who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

Asylum

People come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

Race
Religion
Nationality
Membership in a particular social group
Political opinion

Asylum status is a form of protection available to people who:

Meet the definition of refugee
Are already in the United States
Are seeking admission at a port of entry

You may apply for asylum in the United States regardless of your country of origin or your current immigration status.

If you would like more information please contact us at 908-442-6792.

Naturalization

Naturalization is the legal process by which immigrant/permanent resident card holders become U.S. citizens.

To become a naturalized United States citizen, an applicant must:

Must be a Permanent Resident for at least five (5) years;
Permanent Resident for at least three (3) years if lawful permanent residence status was obtained by marriage to a United States citizen;
Resided continuously within the United States from the date of the application up to the time of admission;
Be a person of good moral character; and
Meet government requirements for literacy and knowledge of U.S. history.

Applicants are tested in their ability to read, write and speak words in ordinary usage in the English language Applicants are required to pass an oral history and government examination, even if exempt from the requirement of speaking English. Exceptions to this requirement exist. The exceptions are as follows:

Persons physically unable comply due to permanent disability are exempt from the literacy requirement with an attestation from a licensed medical doctor or licensed clinical psychologist to support their claim of disability.
Applicants who are more than 50 years of age and who have resided in the U.S. for 20 years as permanent resident aliens as of the date of filing the application may be examined in their native language.
Applicants who are more than 55 years of age and who have resided in the U.S. for 15 years as permanent resident aliens as of the date of filing the application may be examined in their native language.

Derivative/Acquisition of Citizenship

There are circumstances under which individuals born abroad to at least one United States citizen parent are also citizens. For this reason, many people are United States citizens without knowing it.
Some children born abroad acquire citizenship at birth; this is known as “acquisition” citizenship. If both parents were US citizens at the time of birth (and at least one parent resided in the United States for a required amount of time) the chances are good the child acquired citizenship. If United States citizenship is not acquired at birth, a child born abroad may automatically derive United States citizenship (“derivative citizenship”) if one parent is a citizen and that parent has been present in the US for a total of 5 years, at least 2 of which were after the age of 14.

To determine whether someone has derived/acquired citizenship is not a straightforward analysis. The law on this matter has changed over the years and it depends on various factors which may vary depending on each individual case.

If you would like more information please contact us at 908-442-6792.

Adjustment of Status

What is Adjustment of Status?

Adjustment of status is a procedure allowing certain aliens who are already present in the U.S. to apply for immigrant status.

The Immigration and Nationality Act (INA) permits the change of an individual’s immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for permanent residency in a particular category. The common term for a change to permanent status is “adjustment of status.”According to 8 USCS § 1255 (a) the status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

(1) the alien makes an application for such adjustment;
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(3) an immigrant visa is immediately available to him at the time his application is filed.”

The INA provides an individual two primary paths to permanent resident status. Adjustment of status is the process by which an eligible individual already in the United States can get permanent resident status (a green card) without having to return to their home country to complete visa processing.

If you would like more information please contact us at 908-442-6792.