Hi every1. this is the my fisrt time here and I found it to be very helpful. I am married to a US citizen. we got married in ocotber of 2006. in 2001 I entered the united states in transit trying to go to spain from colombia. In transit (miami) my uncle and I decided to apply for political asylum sicne we were persecuted from the FARC in colombia. I was placed on parole with my uncle. At that time I was only 20 years old and all the decisions were made by my uncle sisnce I was not considered to be an adult they never asked me anything. Me and my uncle didnt have a place to go so my uncle in one of the interviews he lied about the address so they would let us go from KROME. CIS sent us a letter to show up fpr court but we were never got it since we didnt leave there. we live pretty on the streets for the fist month of our arrivel. Now, In december of 2006 I applied for the green card. Unfortunately after four years of waiting my green card was denied because I never showed up for court in 2001. all the decisions were made in behalf by my uncle. I didnt have a saying at that time. i never got a social#. the only thing that it was approve was the application I-130. CIS do not want to approve my case. My lawyer tells me that they pretty much they want to make an example out of me. Even though I went to school and obtained a degree in biology with the hopes to get into medical school they still do not want to approve the green card. I am crushed and depressed. I do undewrstand that I didnt go that cout but it was for a reason. CIS dont want to hear that side of the story. Now I am in removal and I dont know what else to do. Almost 5years have passed by with good news. my lawyer told me that this month we could refile our case since 10years have passed by since I entered the united states. Now I am kind of confused since many lawyers from the beginning of my case told me that I didnt have a case. Iguess they were right but our lawyer the one that we have right now was the only one who took our case. I dont know if he just wants to get our money or we really could reapply again after having been here for ten years. I htought that was only when you leave the country that you get a chance to apply not when you are still inside the country. we really dont have more money to spend nor time. the penalty is 10years, do you guys have what I could do here? can insted of ten it could be only 5? maybe I can do medicine oversees and return as a doctor in 5years? please help me guys. thank you
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Please help .. having lots of issues
- Thread starter jimmy30
- Start date
You entered the U.S. "in transit" therefore you are ineligible for regular INA 245 adjustment of status. Your parole from detention did not create a status that allowed to file for adjustment. Also, since you have an outstanding order of removal, your adjustment application is within the jurisdiction of the IJ rather than USCIS. Your subsequent Order of Removal can be Reopened on Motion to allow you to file for Cancellation of Removal as you now have attained (or soon will attain) the prerequisite 10 years of physical presence just to be considered for this relief. HOWEVER, you initially filed for asylum, you will need to affirmatively withdraw that application the first time you see the Immigration Judge. It is good that you did not show up and proceed with that case, just in case it might have been ruled "frivolous" instead you have an in absentia order. You still have to overcome the prior order as well as meet all the requirements for cancellation.
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INA 240A CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS
(b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.-
(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
FN 2 Section 240A(b)(1) and (2) amended by section 204(b) of Public Law 105-100 dated November 19, 1997. Section 1504(a) of Public Law 106-386, dated October 28, 2000, amended section 240A(b)(2) in its entirety.
EFFECTIVE DATE- Any individual who becomes eligible for relief by reason of the enactment of the amendments made by section 1504(a) and (b) of Public Law 106-386, shall be eligible to file a motion to reopen pursuant to section 240(c)(6)(C)(iv). The amendments made by subsections (a) and (b) shall take effect as if included in the enactmentof section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208;110 Stat. 587). Such portions of the amendments made by subsection (b) that relate to section 244(a)(3) (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) shall take effect as if included in subtitle G of title IV of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322; 108 Stat. 1953 et seq.).
FN 2a Language inserted by section 1505(b)(2) of Public Law 106-386, dated October 28, 2000
FN 5 Section 813(c)(1)(A) , (B) , and (C) , of Public Law 109-162, dated January 5, 2006, amended section 240A(b)(1)(C), (2)(a)(iv), and added paragraph (5) to the Immigration and Nationality Act.
_______________________________________________________________________________________________________________________________
8 CFR § 1240.20 Cancellation of removal and adjustment of status under section 240A of the Act.
(a) Jurisdiction. An application for the exercise of discretion under section 240A of the Act shall be submitted on Form EOIR–42, Application for Cancellation of Removal, to the Immigration Court having administrative control over the Record of Proceeding of the underlying removal proceeding under section 240 of the Act. The application must be accompanied by payment of the filing fee as set forth in §103.7(b) of 8 CFR chapter I or a request for a fee waiver.
(b) Filing the application. The application may be filed only with the Immigration Court after jurisdiction has vested pursuant to §1003.14 of this chapter.
(c) For cases raised under section 240A(b)(2) of the Act, extreme hardship shall be determined as set forth in §1240.58 of this part.
_______________________________________________________________________________________________________________________
8 CFR § 1240.58 Extreme hardship. [This is only a starting point. It has been modified by BIA and Circuit Court of Appeals Precedents.*]
(a) To be eligible for suspension of deportation under former section 244(a)(1) of the Act, as in effect prior to April 1, 1997, the alien must meet the requirements set forth in the Act, which include a showing that deportation would result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States, or an alien lawfully admitted for permanent residence. Extreme hardship is evaluated on a case-by-case basis, taking into account the particular facts and circumstances of each case. Applicants are encouraged to cite and document all applicable factors in their applications, as the presence or absence of any one factor may not be determinative in evaluating extreme hardship. Adjudicators should weigh all relevant factors presented and consider them in light of the totality of the circumstances, but are not required to offer an independent analysis of each listed factor when rendering a decision. Evidence of an extended stay in the United States without fear of deportation and with the benefit of work authorization, when present in a particular case, shall be considered relevant to the determination of whether deportation will result in extreme hardship.
(b) To establish extreme hardship, an applicant must demonstrate that deportation would result in a degree of hardship beyond that typically associated with deportation. Factors that may be considered in evaluating whether deportation would result in extreme hardship to the alien or to the alien's qualified relative include, but are not limited to, the following:
(1) The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation; [no longer a factor]
(2) The age, number, and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
(3) The health condition of ....... the alien's children, spouse, or parents and the availability of any required medical treatment [for any accompanying relative] in the country to which the alien would be returned;
(4) The alien's ability to obtain employment in the country to which the alien would be returned; [relates to support of remaining qualified relatives, IF applicable]
(5) The length of residence in the United States; [not a major positive factor for one who just barely meets statutory minimum needed to apply]
(6) The existence of other family members who are or will be legally residing in the United States; [but only if they rely on the removed alien for something (not just $$$), tnhey can also be a hinderance if they can pick up the slack for you when you depart]
(7) The financial impact of the alien's departure; [on qualified relatives only]
(8) The impact of a disruption of educational opportunities; [on qualified relatives only]
(9) The psychological impact of the alien's deportation; [on qualified relatives only]
(10) The current political and economic conditions in the country to which the alien would be returned; [the worse there, the better for you here]
(11) Family and other ties to the country to which the alien would be returned; [available support, but not a major factor and NOT a requirement]
(12) Contributions to and ties to a community in the United States, including the degree of integration into society; [goes towards good moral charcter and the determination if your presence, rather than your departure, is good for the community: get rid of drunks/addicts that beat their wife and kids and committ petty thefts and get picked up for DUI's, disorderly conduct and disturbing the peace, in favor of keeping the wholesome, church-going, educated, family man--even if he has been working unlawfully--he's still been providing for his family rather than collecting welfare and food stamps all in his USC kids' names]
(13) Immigration history, including authorized residence in the United States; and [thankfully, a minor factor overall]
(14) The availability of other means of adjusting to permanent resident status. [it's this or nothing!!]
_______________________________________________________________________________________________________
*The following are cases depicting how specific facts are interpreted under the varied and various factors that can be considered. There is, ultimately, no exhaustive list of factors, that is, there is no limit to what one can put forward to be considered as a "positive" factor in your claim for relief. NOTE: a negative consequence of your departure for your relative is a positive equity for your possibility of relief, just as much as your good qualities are a positive factor. On the other hand there is nothing that is "off-limits" for the government to put forward as a "negative" factor to be considered either.
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3479.pdf
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3467.pdf
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3447.pdf
http://www.ca8.uscourts.gov/opndir/09/06/082832P.pdf
*****************************************************************************************************************
INA 240A CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS
(b) CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.-
(1) IN GENERAL.-The Attorney General 2/ may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
FN 2 Section 240A(b)(1) and (2) amended by section 204(b) of Public Law 105-100 dated November 19, 1997. Section 1504(a) of Public Law 106-386, dated October 28, 2000, amended section 240A(b)(2) in its entirety.
EFFECTIVE DATE- Any individual who becomes eligible for relief by reason of the enactment of the amendments made by section 1504(a) and (b) of Public Law 106-386, shall be eligible to file a motion to reopen pursuant to section 240(c)(6)(C)(iv). The amendments made by subsections (a) and (b) shall take effect as if included in the enactmentof section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208;110 Stat. 587). Such portions of the amendments made by subsection (b) that relate to section 244(a)(3) (as in effect before the title III-A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) shall take effect as if included in subtitle G of title IV of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322; 108 Stat. 1953 et seq.).
FN 2a Language inserted by section 1505(b)(2) of Public Law 106-386, dated October 28, 2000
FN 5 Section 813(c)(1)(A) , (B) , and (C) , of Public Law 109-162, dated January 5, 2006, amended section 240A(b)(1)(C), (2)(a)(iv), and added paragraph (5) to the Immigration and Nationality Act.
_______________________________________________________________________________________________________________________________
8 CFR § 1240.20 Cancellation of removal and adjustment of status under section 240A of the Act.
(a) Jurisdiction. An application for the exercise of discretion under section 240A of the Act shall be submitted on Form EOIR–42, Application for Cancellation of Removal, to the Immigration Court having administrative control over the Record of Proceeding of the underlying removal proceeding under section 240 of the Act. The application must be accompanied by payment of the filing fee as set forth in §103.7(b) of 8 CFR chapter I or a request for a fee waiver.
(b) Filing the application. The application may be filed only with the Immigration Court after jurisdiction has vested pursuant to §1003.14 of this chapter.
(c) For cases raised under section 240A(b)(2) of the Act, extreme hardship shall be determined as set forth in §1240.58 of this part.
_______________________________________________________________________________________________________________________
8 CFR § 1240.58 Extreme hardship. [This is only a starting point. It has been modified by BIA and Circuit Court of Appeals Precedents.*]
(a) To be eligible for suspension of deportation under former section 244(a)(1) of the Act, as in effect prior to April 1, 1997, the alien must meet the requirements set forth in the Act, which include a showing that deportation would result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States, or an alien lawfully admitted for permanent residence. Extreme hardship is evaluated on a case-by-case basis, taking into account the particular facts and circumstances of each case. Applicants are encouraged to cite and document all applicable factors in their applications, as the presence or absence of any one factor may not be determinative in evaluating extreme hardship. Adjudicators should weigh all relevant factors presented and consider them in light of the totality of the circumstances, but are not required to offer an independent analysis of each listed factor when rendering a decision. Evidence of an extended stay in the United States without fear of deportation and with the benefit of work authorization, when present in a particular case, shall be considered relevant to the determination of whether deportation will result in extreme hardship.
(b) To establish extreme hardship, an applicant must demonstrate that deportation would result in a degree of hardship beyond that typically associated with deportation. Factors that may be considered in evaluating whether deportation would result in extreme hardship to the alien or to the alien's qualified relative include, but are not limited to, the following:
(1) The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation; [no longer a factor]
(2) The age, number, and immigration status of the alien's children and their ability to speak the native language and to adjust to life in the country of return;
(3) The health condition of ....... the alien's children, spouse, or parents and the availability of any required medical treatment [for any accompanying relative] in the country to which the alien would be returned;
(4) The alien's ability to obtain employment in the country to which the alien would be returned; [relates to support of remaining qualified relatives, IF applicable]
(5) The length of residence in the United States; [not a major positive factor for one who just barely meets statutory minimum needed to apply]
(6) The existence of other family members who are or will be legally residing in the United States; [but only if they rely on the removed alien for something (not just $$$), tnhey can also be a hinderance if they can pick up the slack for you when you depart]
(7) The financial impact of the alien's departure; [on qualified relatives only]
(8) The impact of a disruption of educational opportunities; [on qualified relatives only]
(9) The psychological impact of the alien's deportation; [on qualified relatives only]
(10) The current political and economic conditions in the country to which the alien would be returned; [the worse there, the better for you here]
(11) Family and other ties to the country to which the alien would be returned; [available support, but not a major factor and NOT a requirement]
(12) Contributions to and ties to a community in the United States, including the degree of integration into society; [goes towards good moral charcter and the determination if your presence, rather than your departure, is good for the community: get rid of drunks/addicts that beat their wife and kids and committ petty thefts and get picked up for DUI's, disorderly conduct and disturbing the peace, in favor of keeping the wholesome, church-going, educated, family man--even if he has been working unlawfully--he's still been providing for his family rather than collecting welfare and food stamps all in his USC kids' names]
(13) Immigration history, including authorized residence in the United States; and [thankfully, a minor factor overall]
(14) The availability of other means of adjusting to permanent resident status. [it's this or nothing!!]
_______________________________________________________________________________________________________
*The following are cases depicting how specific facts are interpreted under the varied and various factors that can be considered. There is, ultimately, no exhaustive list of factors, that is, there is no limit to what one can put forward to be considered as a "positive" factor in your claim for relief. NOTE: a negative consequence of your departure for your relative is a positive equity for your possibility of relief, just as much as your good qualities are a positive factor. On the other hand there is nothing that is "off-limits" for the government to put forward as a "negative" factor to be considered either.
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3479.pdf
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3467.pdf
http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3447.pdf
http://www.ca8.uscourts.gov/opndir/09/06/082832P.pdf
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BetterWorld
Registered Users (C)
@bigjoe - These links are not working or got changed. Could you pls post updated links/docs if you've
Thanks!