Asian Journal- The Filipino-American Community Newspaper

Question: What is a motion to reopen?

Answer: A motion to reopen is a request to the Board of Immigration Appeals to reopen a case when an alien has been ordered by an Immigration Judge or the Board of Immigration Appeals (BIA) removed from the United States

Answer: Yes. The Board of Immigration Appeals has issued an en banc decision granting a motion to reopen to apply for adjustment filed by a respondent who married a US citizen after the USCIS had commenced deportation proceedings against the respondent.

Answer: The BIA modified the rule based on Matter of Velarde-Pacheco, to allow reopening for adjustment, in the exercise of discretion, only where five conditions are met:

• the motion to reopen must be timely filed (within 90 days of a final order);

• the motion must not be numerically barred;

• the motion must not be barred by Matter of Shaar, or other procedural grounds (in Shaar, an alien who had failed to depart the US prior to the lapse of a granted period of voluntary departure was ineligible for relief;

• the respondent must present clear and convincing evidence indicating a strong likelihood that the marriage is bona fide; and

• the motion must not be opposed by the USCIS.

Answer: The BIA noted that the rule, in conjunction with the regulatory time and numerical limits for motions to reopen and the inability of the USCIS to adjudicate visa petitions within 90 days, serves "to deprive a small class of respondents, who are otherwise prima facie eligible for adjustment, of the opportunity" to apply.

Note: This is not a legal advice.

Filing under the new late amnesty settlement starts on February 1, 2009 and ends on January 31, 2010. The requirements are: (a) the applicant came to the United States on a valid visa before 1982 and fell out of legal status between 1982 to 1988. (b) The violation of status must be known to the government. (c) They must have resided continuously in the United States from before 1982 to 1988. Some denied amnesty applicants may file again this time if (a) their application has not been adjudicated or (b) their Temporary Resident Status has been proposed for termination or (c) their applications were denied because the government believed that they failed to meet the requirement that their unlawful presence was continuous.

We again have successfully obtained a waiver of fraud or misrepresentation in Immigration Court for a green card holder who entered as single but is actually married. The green card holder who has been in the United States for 17 years has a mother who is a US citizen.

Green cards without expiration date should be renewed. They have the alternative of applying for naturalization. Please call our office for questions about renewing green cards.

Waiver for misrepresentation at the time of entry (entered as single but is actually married) may be waived if you have a parent, spouse, son or daughter who is a US citizen or lawful permanent resident. Once approved you may be eligible for naturalization. You should apply now before your personal situation or the law is changed.

Denied adjustment of status and Naturalization applications are now being sent to the Immigration Court.

Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. Our office assists clients in obtaining ITIN.

* * *

Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188. (Advertising Supplement)

( www.asianjournal.com )

( Published on January 14, 2008 in Asian Journal Los Angeles p. B2 )