Abused Chinese Immigrant Wins Motion To Reopen And Overcomes In Absentia Deportation
Xiuying, a Chinese citizen, met Henry, a U.S. citizen, through an online dating service. Her husband had passed away six years before. She slowly started to chat with different individuals, in the hopes of finding a new life companion.
During the next two years, Henry made three trips to visit Xiuying and her family in China. They got along well and he asked her to join him in the United States. He filed a fiancé visa for her. They moved into his Chino Hills home. They married 60 days later.
After about three months, they filed for her to obtain a green card. She was granted conditional lawful permanent resident status. At that point, their relationship began to change.
Henry became more controlling. He would not teach her to drive, would not allow her to attend English As A Second Language courses, and would not have any close friends. Even though he only understood rudimentary Chinese, he listened in on her calls with her daughter, Qiuyue, who lived in Oakland, California.
The mistreatment lasted several months. He began to sexually abuse her, physically hitting her if she refused his advances. When her daughter found out, she made plans to rescue her mother. One day, Qiuyue drove to her mother’s residence, helped pack her belongings, and told Henry that Xiuying would be visiting at her house for awhile. Xiuying never went back to Henry.
A few months subsequent, Xiuying was served with a petition for dissolution. Henry had filed for divorce. Since Xiuying did not want to live anymore with Henry, she did not contest the dissolution. The judgment was granted six months afterwards.
How Failure To Remove Conditions On Residency Cause Deportation Issues
Neither Xiuying nor Qiuyue understood how the divorce affected Xiuying’s immigration status. As a result, Xiuying did not file the I-751 petition to remove the conditions on her residence. Because she failed to submit the petition in a timely manner, her legal status was terminated by the government. Her file was transferred to the immigration court to begin deportation proceedings.
In the eyes of the government, she was an undocumented Chinese immigrant.
Meanwhile, Qiuyue became a U.S. citizen. She decided to immigrate her mother on her own, filing an I-130 petition and a new I-485 application on behalf of Xiuying. At her mother’s interview before the U.S. Citizenship and Immigration Services, the I-485 was denied. The denial was based on the in absentia removal order.
Her status reverted to that of a Chinese immigrant who had overstayed her visa and was now without permission to live in the U.S.
This was the first time they learned Xiuying had been placed in immigration proceedings, summoned to appear at court, and ordered deported back to China. Qiuyue began to look for an attorney for Chinese immigrants.
Not satisfied with the responses from the first couple of offices she reached out to, she kept searching.
Then a friend told her that Carlos had successfully helped other Chinese immigrants as a deportation and removal defense lawyer. She called our San Bernardino immigration office to find out if he could help her mother. Since no one knew what had exactly happened, he recommended finding out as much as possible about the deportation order.
He told them, to protect Xiuying, they should move swiftly. Since the removal order was in effect, he warned them that she could be taken into immediate immigration custody and not be given any chance to figure things out.
After being retained the next day, Carlos verified the order was issued by the Los Angeles immigration court. He made arrangements to review the court’s file and hearing transcripts two days later.
As he suspected, Xiuying had been deported as an undocumented Chinese immigrant on an in absentia basis.
He informed the family, based on the facts of Xiuying’s failure to appear, she should file a motion to reopen her case. He explained, from a technical standpoint, it did not seem the court or the government made any legal mistakes. This meant a motion to reconsider the deportation deportation was not as strong an option.
Carlos explained there were three possible outcomes.
If the judge could be persuaded to reopen the case, he suggested, the judge might also subsequently agree to administratively close the case so that Xiuying and her daughter could refile the permanent resident application at USCIS.
If the judge did not agree to reopen the case, they would have to file an immigration appeal.
On the other hand, if the judge reopened the case but not agree to administrative closure, Xiuying would still be able to file an application for green card status at immigration court.
Aware of their options, the family agreed to follow Carlos’ advice.
Motions To Reopen vs. Motions To Reconsider
Many immigrants get confused by the difference between a motion to reopen and a motion to reconsider.
Here’s a brief explanation.
In certain cases, upon receiving a negative decision, an immigrant may file a motion to reopen or motion to reconsider.
- A motion to reopen is based on new evidence or changed circumstances.
- A motion to reconsider is based on new legal arguments stemming from wrong reasoning used in making the decision.
In many cases, it is strategically wiser to file both motions in a combined manner, especially when factual and legal issues are closely intertwined.
Fighting A Deportation Order With A Motion To Reopen
Carlos discovered the notice for her immigration hearing, alleging Xiuying was a Chinese immigrant who overstayed her visa, was sent to Henry’s address.
Neither Xiuying nor Henry appeared at court. The immigration judge, believing that notice had been properly served on her at Henry’s address, ordered Xiuying to be deported in absentia for not showing up to challenge the charges.
Henry did not inform Xiuying about her hearing. In fact, Henry was in the Philippines when the notice arrived in the mail. He did not return to the U.S. until about four weeks after the date of Xiuying’s hearing. When he finally saw the notice, he threw it away and never bothered to tell her.
Administrative Closure Necessary For Adjustment Of Status
Armed with this information, Carlos contacted the ICE government lawyer who had handled Xiuying’s hearing at immigration court. She noted that she would agree to a joint motion to reopen only if Carlos could prove Xiuying had strong grounds to win a green card without her ex-husband.
If he could prove this, the government attorney said she would also not oppose a motion for administrative closure.
What Is Administrative Closure?
Administrative closure is a special procedure used at immigration court to temporarily
pause proceedings in certain circumstances. It does not terminate or dismiss the case.
When a case is administratively closed, the case is halted and removed from the court’s active docket. No further hearings are scheduled.
The case remains suspended unless either the immigrant or the government files a motion to place the matter back on the court’s docket and the court grants the motion.
The procedure has two primary purposes.
It (a) enables immigration judges to operate more efficiently by (b) allowing immigrants to pursue actions outside of court that could lead to green card status and resolution of the underlying deportation charges without taking up the court’s time.
Editor’s Note: In recent years, the Trump administration has clamped down on the circumstances under which Immigration judges are permitted to grant administrative closure.
Carlos accepted the ICE attorney’s challenge and promptly began to develop two different claims for Xiuying.
First, he laid out the evidence for her relief under the Violence Against Women Act as an abused wife.
Second, he set forth materials demonstrating the strength of Qiuyue’s sponsorship for her mother to adjust status from undocumented Chinese immigrant to permanent residency.
The claims convinced the ICE attorney to support Qiuyue’s motion to reopen. Within two weeks, the immigration judge issued a new order which revoked the deportation order and reopened Xiuying’s court proceedings.
A hearing was scheduled at immigration court. To ensure the judge properly understood Xiuying’s family situation, a new motion, this time to administratively close the case, was submitted by Carlos a few weeks in advance.
At her hearing, satsified with the proof that had been submitted, the judge closed the case so that Qiuyue could file a new family-based green card application for her mother.
This time, at USCIS, the removal order was not an issue. Xiuying won her case.
Today, Xiuying is a lawful permanent resident, working as a cashier at a restaurant. She lives with her daughter, her daughter’s husband, and their two young children. Looking ahead, she plans to apply for U.S. citizenship as soon as she is eligible.
No matter how difficult the road ahead may seem, do not give up without exploring all your options. This series of immigrant success stories is dedicated to those who refuse to stop believing that some day, somehow, victory will be theirs.
This article about deportation and removal defense and motion to reopen issues is Example Number 8 on the different types of challenges and obstacles which immigration lawyer Carlos Batara has helped immigrants overcome.
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