More Patting Ourselves on the Back

Since the last post, Carpenter & Capt has helped clients prevail in more than two dozen additional immigration cases in front of the U.S. Department of Homeland Security, the Executive Office of Immigration Review (Immigration Court) and the Board of Immigration Appeals. The victories were on behalf of nationals of India, China, Taiwan, Poland, Canada, Japan, the United Kingdom, Ireland and Pakistan, among others.

This group of wins included marriage-based permanent residency cases, I-751 petitions to remove the conditional basis of marriage-based visas, naturalization, employment-based visa petitions, deportation (removal) defense, and appeals of removal orders. The marriage-based cases were decided after interviews by the U.S. CIS in Chicago, Detroit, and Milwaukee.

One approval was for a duplicate I-130 filed for a client seeking re-adjustment of status in front of an immigration judge, because the permanent resident (and spouse of a U.S. Citizen) faces deportation unless the judge granted this unusual remedy prescribed by precedent decisions. The interviewing officer at the CIS looked at Robert Carpenter after the interview began and said, "So counsel, how is it your clients are applying for a green card when he already has one?" Expecting the question, Robert explained the process and gave the officer copies of the lead cases allowing the process. The officer consulted with DHS attorneys and issued an approval a short time later.

The firm also prevailed in a deportation case where the defense was cancellation of removal under the Violence Against Women Act (VAWA). Several elements had to be shown, including the abuse, the bona fide nature of the underlying marriage, and extreme hardship to the foreign national and/or the children if the victim were deported. We were able to accomplish all through the presentation of police reports, medical evidence, detailed affidavits and testimony. The victim is now a permanent resident of the United States.

On the scientific end of the spectrum, we obtained an extraordinary ability visa approval in the EB-1 category for a nanotechnologist, specializing in materials science. The beneficiary self-petitioned (that is, an employer did not file the petition) - a process through which very few visas are granted each year. The case entailed a submission of more than 400 pages, with a detailed discussion of the technology and benefits at issue. The materials established that the beneficiary is an extremely rare talent, whose abilities would prospectively benefit the United States in a variety of ways, not the least of which are various applications that produce greater efficiencies in power usage and other greener products. Our position was verified by affidavits from several government agencies, and a bevy of other leading scientists from across the United States.

Brian Sather, the firm's newest addition, and a lawyer with 10 years of experience of his own, scored a solid win on a case in front of the U.S. CIS in Chicago. The client had applied for permanent residency on his own, after obtaining asylum. He traveled outside of the United States without special permission (advance parole) from the government - an action that prompted the U.S. CIS to threaten to deny his application for permanent residency. The Notice of Intent to Deny the person's permanent residence was predicated on a regulation, that stipulates an applicant who leaves the U.S. without permission automatically abandons the adjustment of status application; Brian correctly argued that the automatic abandonment provision only applied to those seeking to adjust under Section 245 of the Immigration & Nationality Act, not asylees who adjust under Section 209 of the Act. He offered a DHS Memo to support his position, and the Officer had no choice but to reverse course and approve the case.

Finally, the Board of Immigration Appeals ("BIA") reversed a denial of a Chicago immigration judge on a motion to reopen that had already been remanded once by the BIA and the Ninth Circuit Court of Appeals. The issue was whether the respondent (person the government was attempting to deport) was properly notified of his deportation hearing 20 years ago when he was a minor. The evidence showed that his uncle was an abusive alcoholic who couldn't manage his own life, much less be responsible for bringing this child to court. The immigration judge, however, said the wording of the statute did not require the government to show that the adult was responsible - it only required that an adult was served with the notice of hearing. We argued that the wording obviously required more. The brief read in part,

"INA §242B, 8 U.S.C. §1252b, was enacted in order to create more substantial notice procedures to increase the probability of attendance at hearings by respondents, thereby satisfying Judges that the due process rights of aliens were met before entering in absentia orders. See Iris Gomez, The Consequences of Non-Appearance: Interpreting New Section 242B of the Immigration and Nationality Act, 30 San Diego L.Rev. 75, 85 (1993). The spirit of this provision included the critical safeguard to protect aliens who did not receive adequate notice of allowing an alien to file a Motion to Reopen “at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2)…” INA §242B(c)(3)(B). Juvenile aliens were entitled to additional notice under the INA and attendant regulations that were operative at that time. The regulations expressively provided that a “responsible adult” assumed both custody and responsibility for a juvenile’s release into that adult’s care. See 8 CFR §242.24. Then–INA §242.24(b)(4) stated that where an adult agreed to care for the juvenile’s well-being and ensure the juvenile’s presence at all future proceedings before the INS or an Immigration Judge, that adult was required to swear in an affidavit that he or she was capable and willing to care for the juvenile’s well-being. Then–INA §242.24 as a whole required that an adult to whom a juvenile alien was released was not only responsible for caring for the juvenile, but also for ensuring that the juvenile kept his obligations to the court. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1156 (9^th Cir. 2004). Juveniles were therefore presumed unable and ill-equipped to appear at immigration proceedings with out the assistance of a competent adult."

The Board agreed and reversed the immigration judges denial, reopened the case, and remanded it to the immigration court for consideration of the client's spousal-based permanent residency application. The family is relieved to have a chance to remain together in the United States, where the client has lived for 30 of the 40 years of his life.