Cancellation of Removal Proceedings from US

[kodo]

I am a Canadian citizen. I have an approved I-131 filed by my US-citizen wife. we have 2 kids - 4yrs and 2.5 years old. This approved I-131 is the second application that my wife has made. The 1st application was denied because I accidentally left the US and went to Canada on a 1 week business trip without first obtaining advance parole. I was refused re-entry to the US so I had to apply for advance parole from Canada and finally got it after 4 months and then entered the US with the approved advance parole. However, USCIS had issued a denial letter and ICE is now pursuing removal proceedings against me - all this based on the 1st application. I have attended 2 master hearings and the judge has asked my laywer to go talk to USCIS so we can resolve the issue out of court. Our next court date is May 2010.

Should I apply for cancellation of removal based on my 2 kids, and based on extreme and unsual hardship? my son has been diagnosed with autism and is currently enrolled in a special ed program which is very helpful to him and we may not be able to get such help from outside the US. On the other hand, can we simply argue that I have no criminal record, have lived in the US for 7 years, and I enetered the US with a legal advance parole? The judge is saying that the advance parole should not have been issued since I left the US without first applying for it. Thanks

 

[Jackolantern]

I am a Canadian citizen. I have an approved I-131 filed by my US-citizen wife. we have 2 kids - 4yrs and 2.5 years old. This approved I-131 is the second application that my wife has made. The 1st application was denied because I accidentally left the US and went to Canada on a 1 week business trip without first obtaining advance parole.

You are confusing numbers and terminology. I-131 is Advance Parole. I-130 is the immigrant petition, which is not denied just because of you leaving to Canada. It is the I-485 (Adjustment of Status) that got denied because you left the US without Advance Parole.

I have attended 2 master hearings and the judge has asked my laywer to go talk to USCIS so we can resolve the issue out of court.

If you had this lawyer before you got into this trouble, fire the lawyer. Any competent immigration lawyer should have warned somebody in your situation not to travel outside the US before getting Advance Parole.

The judge is saying that the advance parole should not have been issued since I left the US without first applying for it.

The judge is right, the issued Advance Parole is invalid because you were outside the US when it was applied for and when it was approved. It is just by mistake that they let you in, probably because they didn't realize you were outside the US at the time it was approved.

Forget about trying for cancellation of removal based on extreme hardship. It is terribly hard to get (you'll likely need to spend tens of thousands of dollars on lawyer fees, unless the lawyer is working pro bono) and your situation isn't nearly as terrible as those who get approved. Cancellation of removal also doesn't give you a green card or make you eligible for one; it just lets you stay in the US indefinitely.

When you filed the first I-485, had you overstayed your visa or visitor status? If yes, how long was it since that status expired until you filed the I-485? Depending on your answers I can make some suggestions (or figure out which other questions to ask) as to what your options are.

 

[kodo]

You are right - I meant the new I-130 (petition) was approved. The first I-130 and 485 were both denied because the I-130 was considered withdrawn (by my spouse) and the 485 was considered abandoned. I have the second I-130 approved in my hands now.

At the time of leaving for Canada, we were not using any lawyer, so we had no advice on this advance parole stuff. Prior to our filing, I had a valid TN Visa and I had been on TN Visas for several years withought ever going out of status - always maintained a current TN Visa.

My question now is, given that I came in based on an advance parole that the US govt itself issued, should I be penalized to the maximum for this? I mean, what would be the worst case scenario here. If for example I am asked to leave the US, will I have an opportunity to apply again when I go to Canada, especially considering that I hold an approved I-130 which I may be able to use at a US embassy in Canada to continue processing as a sponsored spouse? Another option, is, what about another visa type such as "K" visas, etc? Thanks