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Success Story No. 8

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.

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.

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 contacted Carlos at his San Bernardino immigration office to find out if he could help her mother. Since no one knew what had exactly happened, Carlos recommended finding out as much as possible about the deportation order. He told them, to protect Xiuying, they should move swiftly. Since a removal order was in effect, 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 Carlos suspected, Xiuying had been deported 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 also explained, from a technical standpoint, it did not seem that the court or the government made any legal mistakes, which meant a motion to reconsider the deportation deportation was not as strong an option.

They 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.

Fighting A Deportation Order With A Motion To Reopen

Carlos discovered the notice for her immigration hearing 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, Carlos found out 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.

Carlos accepted the ICE attorney’s challenge and promptly began to develop two different claims for Xiuying. First, he laid out the evidence for relief under the Violence Against Women Act. Second, he set forth materials demonstrating the strength of Qiuyue’s sponsorship to adjust her mother to permanent residency.

The claims convinced the ICE attorney to support Carlos’ motion to reopen. Within another two weeks, the immigration judge issued a new order which revoked the deportation order and reopened Xiuying’s court proceedings.

At her hearing, the judge closed the case so that Qiuyue could prepare and file a new adjustment of status application for her mother.

Today, Xiuying is a lawful permanent resident, working as a cashier at a restaurant. She lives with her daughter and her husband and two young children. She hopes to become a U.S. citizen in a few more years.

This article, centered on green card and deportation defense issues, is part eight of a series on the successes of immigration lawyer Carlos Batara in different types of cases.

Follow this link to read more: Spouse Wins Green Card Despite Previous Invalid Divorce