I 130 I485 for lack of Jurisdiction

[medsas 0]

Hi everyone,

I need a bit of advice, I had an interview for adjustment and was told that a decision cannot be made until I dealt with a removal in absentia that I had against me. Well my father was married and denied he never give me any info about the order and refuse to appeal the case,my is and I was on his case. I received the denial letter and my husband was instructed to write a letter for bona fide marriage exemption letter with a I 130, I plan to write a letter to the Judge requestiong that the case be reopen because of lack of knowledge about removal in absentia along with other documentation. I know I would eventually need a lawyer to go to court but would like to get some info about what steps I should take and what forms I have to fill out.

[Boiler 46,084]

You were a dependent on his application?, I do not see how you can open his case.

Get a Lawyer now.

[medsas 0]

You were a dependent on his application?, I do not see how you can open his case.

Get a Lawyer now.

Yes I were a dependent on his case but my sis did write a letter asking the judge to reopen and he did. I know there is a clause whereby when there is a removal in absentia if you can prove you did not receive it, the might be reopen.

[Darnell 8,479]

Sorry, not a K-3 visa topic

*** moving to AOS forum ***

[Brother Hesekiel 2,236]

You absolutely need an immigration lawyer right now.

[belinda63 3,047]

You need an attorney as this is beyond the scope of this forum, it is a legal matter which requires legal expertise. It appears you have been deported but since you didn't know this you never left the country thus in the eyes of the US you are here illegally and ineligible to adjust status(my non-legal opinion).

[sachinky 465]

Lawyer. NOW.

[JimVaPhuong 4,863]

Yes I were a dependent on his case but my sis did write a letter asking the judge to reopen and he did. I know there is a clause whereby when there is a removal in absentia if you can prove you did not receive it, the might be reopen.

I don't understand what you're trying to accomplish by having the removal case reopened.

It's true that you can request the immigration judge to reopen the case when an order of removal has been issued in absentia. The basis for the request has to be that you did not receive notice of the hearing (as in your case), or that you could not attend the hearing due to extraordinary circumstances. The request has to be made within 180 days of the issuance of the order of removal.

Presuming you were successful in getting the immigration judge to reopen the case, you'd still have to address the reason for the removal. If I understand what you've said, your father's AOS was denied and you were a derivative of his immigration case. If that's the case, then his denial automatically means you are also denied. There really isn't any basis to appeal this. You might be able to get the order in absentia lifted because you didn't receive a notice to appear, only to be issued a new order of removal.

You have technically been in removal proceedings ever since your father's AOS was denied. Since you got married while you were in removal proceedings, your marriage is automatically presumed by USCIS to be a sham for the purpose of evading immigration law. It's going to be very difficult for you to beat the removal order by way of your marriage. If you don't, then your accumulated overstay is also going to be counted against you. If it's more than 180 days, then you are facing an automatic ban. You'd need a hardship waiver in order to overcome this.

You haven't given us a lot of information, and there are still some scenarios that might be a lot less dire if they apply to you. For example, if you got married before your father's AOS was denied, then your marriage wouldn't automatically be presumed to be a sham. You'd have a decent chance of adjusting status after you address the removal order.

Everyone's advice has been spot on - you need a very good immigration lawyer.

[medsas 0]

When I had the interview the imm. officer said he couldn't do the interview b/c of removal proceedings so I have to do a motion to reopen if the judge agrees then I can be interviewed for I 485 ( reason for lack of jurisdiction). In regards to the I 130 denial letter my husband was instructed to write an exemption for bonafide marriage and to send documetation of our relationship. I have a child with my husband and we lived together before we married.

[JimVaPhuong 4,863]

When I had the interview the imm. officer said he couldn't do the interview b/c of removal proceedings so I have to do a motion to reopen if the judge agrees then I can be interviewed for I 485 ( reason for lack of jurisdiction). In regards to the I 130 denial letter my husband was instructed to write an exemption for bonafide marriage and to send documetation of our relationship. I have a child with my husband and we lived together before we married.

Ok, what the interviewing officer told you is that he can't even adjudicate your AOS petition because he has no jurisdiction while there is a removal order in place. If you manage to get the case reopened then the removal order won't exist (while your removal case is pending), so USCIS will have jurisdiction to consider your AOS petition. USCIS is specifically barred from granting an AOS based on marriage to a US citizen if that marriage took place while the alien was in removal proceedings. 8 CFR, section 245.1(c )(8)(iii)(F ) allows USCIS to exempt the alien and consider the AOS petition if the alien provides clear and convincing evidence that the marriage was entered into in good faith, was legal in the location where the marriage took place, was not entered into to obtain an immigration benefit, and no fee or other consideration was given to the petitioner in return for filing the petition.

The burden of proof is far greater than it would be for someone who was not in removal proceedings when the marriage took place. "Clear and convincing evidence" is comparable to the "beyond a reasonable doubt" burden used in criminal cases. 8 CFR 245.1 requires USCIS to presume your marriage is a sham, and you're going to have a very difficult time convincing them otherwise. You really should not attempt to do this alone or you will almost certainly lose. There is a wealth of prior case law where people in similar situations had very good attorneys and they were STILL denied.

You need a very good lawyer.