Many clients and attorneys have asked me: Poonam, when is it appropriate to file a Motion to Reopen before the immigration court or Board of Immigration Appeals (BIA)? How do you know whether the process is just filing waivers and having the client go back to their home country for consular processing or they can attempt to seek assistance from the court? My answer: It depends. You have to evaluate the case carefully and ask the right questions.
If the client has a deportation order from 2006 and is now married to a green card holder, you need to ask whether client's spouse is going to eventually become a US citizen. You would also need to find out how the client entered the US: was it a tourist visa, C1D visa or they crossed the border? This is very important. Let's just say client's spouse won't ever apply for citizenship because she has a reason of her own or it's too risky. And you find out client entered with a tourist visa and overstayed. Would you file for a Motion to Reopen or file the following waivers: one to waive the deportation issue, one to waive the unlawful presence issue, etc?
Let's look at the issues:
1) Client has a deportation order
2) Client entered with a tourist visa, but he overstayed
3) Does marriage to a green card holder while client is out of status cure the unlawful presence issue? No.
4) Does the motion to reopen apply here? Client would be asking to reopen proceedings after the Immigration Judge or BIA has rendered a decision, so that new facts or evidence in the case may be considered.
But what can you do with the judge or BIA? Is the client adjustable in this scenario? He's not. So it might be appropriate to file the consent to enter the US waiver and eventually the unlawful presence waiver after your spouse files the marriage petition for you. Don't even think about filing the adjustment of status application, client in this scenario is not adjustable. You would have to further evaluate the case to see if the client even qualifies for any waivers, but that is a different topic for another blog!
Let's change the facts a little bit. Client entered the US with his tourist visa in 2004, overstayed and applied for asylum, which resulted in a deportation order. Client is now married to a US citizen and does not want to go back to his home country.
Let's look at this carefully:
1) Client has a deportation order. Yes.
2) Client entered with a tourist visa, but he overstayed. Yes.
3) Does marriage to a US citizen while client is out of status cure the unlawful presence issue? Yes.
4) Does the motion to reopen apply here? Client would be asking to reopen proceedings after the Immigration Judge or BIA has rendered a decision, so that new facts or evidence in the case may be considered.
Here, the client may request the court to reopen proceedings based on these new facts and evidence but it would be better if there was an approved marriage petition or even a pending petition. The client may request the court or BIA to reopen the proceedings to allow him to adjust either before USCIS or the court. In this scenario, client is adjustable and requesting the court or BIA to reopen the proceedings would help take care of the deportation order and the client is seeking to adjust.
Immigration cases are complicated that's why it is always recommended that you retain an experienced immigration attorney to guide you through the process accordingly. Filing a motion to reopen is not easy and all of your facts and circumstances must be discussed and evaluated. Sometimes you also have to look at the delay in filing and whether you previously filed a motion to reopen but it wasn't successful. Being truthful about your immigration history will help the attorney in strategizing for your case. Better preparation is key.
(This blog was written by Attorney Poonam Minhas to provide general information. This blog is not to be taken as legal advice nor does it form an attorney-client relationship. Each case is unique in nature and requires attention of a retained experienced immigration attorney. Should you have questions about your immigration case, you may schedule a private consultation with Attorney Minhas.)
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