New Case for Arriving Aliens and Motions to Reopen

October 13, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.

The Board of Immigration Appeals (BIA) has routinely refused to grant any motions to reopen for arriving aliens, claiming that arriving aliens must file their green card applications with the USCIS directly. Therefore, the BIA has reasoned, the Immigration Judge has no jurisdiction to review the applicant's adjustment of status petition, and the BIA has no jurisdiction to reopen any of those motions.

Our own 11th Circuit Court in Florida has even issued a precedent decision stating that the BIA has not abused its discretion in denying motions to reopen for arriving aliens. Under new USCIS policy, any person classified as an arriving alien must file their adjustment of status petitions directly with USCIS. This means that EVEN PEOPLE WITH FINAL ORDERS OF REMOVAL, if they are classified as arriving aliens, must file their green card applications with USCIS directly and not with the Immigration Judge. Of course, this places the applicants at risk of being arrested once they appear at the local USCIS office for their interview, due to their final order of removal.

An example of someone who is classified as an arriving alien is a person that is paroled into the U.S. and has an I-94 card that states "paroled." A I-94 card is a white card that is stapled into someone's passport upon their entry into the U.S.

Recently, my office has received an approval for a green card application we filed for an applicant who was paroled into the U.S., married to a U.S. citizen in good faith, and even though he has a final order of removal issued by the Immigration Judge, we were able to obtain a green card on his behalf.

Recently, a new creative way to argue around the issue of previous precedent decisions issued by the BIA stating that they lack jurisdiction to reopen cases for individuals with orders of removal who are arriving aliens is to point to the case of Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011). This is a precedent case issued by the BIA that is highly relevant to the issue of arriving aliens and motions to reopen.

In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA reopened the Respondent's removal proceedings and remanded, i.e. sent the case back, to the Immigration Judge, despite the fact that the Respondent is an arriving alien. The BIA conceded that the Respondents are arriving aliens AND even stated that the only immigration relief available to the Respondents is adjustment of status through the Cuban Adjustment Act with the USCIS! So this case flies in the face of previous precedent cases issued by the BIA where the BIA refuses to grant Motions to Reopen, asserting lack of jurisdiction.

The main difference in the above case and other BIA precedent cases is that in Matter of E-R-M-F- & A-S-M-,it was the DHS that wanted the case reopened. Also, in the above case, the Respondents do not have a final order of removal, as the Immigration Judge had previously terminated their removal proceedings to allow them to file their green card application via the Cuban Adjustment Act with USCIS, as required by USCIS Memos and Statute.

In my law practice of exclusively immigration law, I am now relying on the above case when filing Motions to Reopen for Arriving Aliens. A brief excerpt from one of my pending Motions to Reopen is as follows, noted as Argument #3: (permission granted by client):

3. The Respondent in the instant matter is similar to the Respondents in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011) and therefore the Decision dated May 11, 2011 should be vacated

The Board has issued a new precedent decision dated June 3, 2011 in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011) that is highly relevant to the Respondent's matter. The Board on June 3, 2011 allowed removal proceedings to be reopened and remanded to the Immigration Judge, even though the Respondents in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011) are ARRIVING ALIENS and their form of relief is only available to them through USCIS, just like in the instant matter. The Respondents in the above case are eligible for adjustment of status via the Cuban Adjustment Act, which can only be filed directly with USCIS. The Respondents are also arriving aliens, just like the Respondent in the instant matter. Therefore, the underlying forms of relief are similar since both Respondents are arriving aliens, both seek adjustment of status that can only filed with USCIS directly, both are immediately eligible for the relief, and only of the parties has had their removal proceedings be remanded to the Immigration Judge. In the instant matter, the Respondent seeks the same benefit that was afforded to the Respondents in the recent BIA case, which is that he wants his case to be reopened and remanded to the Immigration Judge like in the above precedent case or to have his removal proceedings be reopened and terminated so that he can have his final order of removal vacated given his new form of immigration relief not previously available to him.

CONCLUSION:

We are still waiting for the BIA decision in the above case. However, for those that are facing strong precedent cases against them as arriving aliens seeking relief through the BIA, perhaps the above argument can get them some hope. For our case sample noted above, we will see whether the above argument is successful, but at least we now have one legal precedent to rely on as one of our arguments on behalf of our arriving alien clients when we seek reopening of their removal proceeding through the Board of Board of Immigration Appeals (BIA).

Please go to www.needimmigrationhelp.com and contact Lena Korial-Yonan, Esq. if you need help with this type of case.

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