Deportation?

[Gugusitolindo 32]

They quoted both the Thomas and Arai cases to reinforce that the judge has discretion in weighing the positive and negative factors. They weren't trying to make a direct comparison between those negative factors. Thomas obviously had overwhelming negative factors. The judge apparently determined that the negative factors in your husband's case were enough to outweigh the positive factors, and the BIA apparently agreed with him.

I haven't seen any posts on VJ from anyone else who had submitted a joint motion to reopen. Even if you find someone, their case would have to be nearly identical to yours in order to be able to infer anything from their experience. For example, you couldn't make a direct comparison to someone whose AOS had been denied because they had a single conviction for shoplifting a pack of gum and then managed to successfully get the Service counsel to join their motion to reopen. Is a single conviction for shoplifting a pack of gum a less severe negative factor than five arrests? Is it more? Who knows?

I'm going to prognosticate, and predict that your motion will be denied. Do you have a plan for what you will do next? Have you discussed this possibility with your attorney? Will you file an appeal in a district court? How long are you willing to leave your husband in detention while you try to fight this? How much money are you willing to spend on legal fees?

Where did you get the impression that she's an LPR? If that were the case then there would be no judge's discretion involved. He wouldn't be eligible to adjust status because of the overstay - case closed. In the BIA denial she quoted it said "his United States citizens wife and child". I think she's clearly a USC.

According to the verbiage, she is a LPR- see below for copy and paste from original post.

We have taken into account the respondent’s favorable equities in this

country including his length of residence, family ties (lawful permanent resident wife, their 4-year-old United States citizen child, lawful permanent resident mother and half-brother),

[JimVaPhuong 4,863]

According to the verbiage, she is a LPR- see below for copy and paste from original post.

We have taken into account the respondent’s favorable equities in this

country including his length of residence, family ties (lawful permanent resident wife, their 4-year-old United States citizen child, lawful permanent resident mother and half-brother),

She was quoting "Matter of Thomas", another immigration case that the BIA cited in her husband's denial.

[VanessaTony 3,567]

This is an excerpt from the BIA denial after our appeal:

"We address the respondent's arguments that the Immigration Judge failed to properly weigh the evidence in denying adjustment of status as a matter of discretion. The Board reviews matters of discretion de novo. We disagree with the respondent that the Immigration Judge failed to give sufficient weight to the respondent's family ties in the United States, specifically his United States citizens wife and child. We also disagree that the Immigration Judge placed too much emphasis on the respondent's multiple arrests for criminal behavior, given that the respondent has never been convicted of a crime. See Matter of Thomas 21 I&N Dec. 20 (BIA 1995) (holding that an arrest can be considered as a negative discretionary factor)." and "While the respondent was never convicted of a criminal offense, the evidence of his argumentative and confrontational behavior were properly considered by the Immigration Judge. We agree with the Immigration Judge that the negative factors outweigh the equities. See Matter of Arai, 13 I&N Dec.494 (BIA 1970)."

<snip>

So the first thing that I do not understand is why they chose to reference either of these matters, as my husband was never accused of drug dealing, killing someone, drug use, possession of a weapon (Thomas) or anything even in the same ball park. He was arrested for disorderly conduct, basically being a idiot and raising his voice arguing with stupid people. The second matter seems to be decision which should have helped us, as he had family ties (myself and child), 7 years in the US, and I was unemployed at the time and unable to support myself on my own.

That said, I really want to focus on my question which is whether or not anyone has had any experience with the joint motion to reopen, and if so what was the outcome-negative or positive. Thanks again all and please if you want to discuss anything other that my question feel free to PM me or not bother posting at all...thanks!

Okay here's my take on it.

In the matter of Thomas the person appeared to not have actually been convicted of any crimes but instead was only arrested for them. The fact that the charges were dismissed doesn't mean that your spouse is a good guy... it simply means they didn't have enough evidence to convict him at that time. I think that's what they're saying by referencing Thomas, while he wasn't convicted they believe "his argumentative and confrontational behavior" is an indicator that he's not a good guy and that by being arrested five times (you didn't say if they were all at once or separate issues.. that I can remember) they had to have had at least enough evidence to arrest so that's still not good in their book.

And with Arai "A favorable exercise of administrative discretion is warranted where positive factors, such as family ties, length of residency, and hardship, outweigh adverse considerations". They've decided that the judge properly weighed his five arrests (and I think they're saying they think he's likely to be guilty but the courts couldn't prove it) and his "argumentative and confrontational behavior" against the positive factors and found that he's more bad than good.

I'm definitely thinking there's something in the arrest records or his interview records or whatever that's much worse than you think it is... Have you seen the arrest records to see what they say? That might help.

Edited May 10, 2011 by Vanessa&Tony

[MarocAEHabiby 2]

.

Edited May 11, 2011 by MarocAEHabiby

[MarocAEHabiby 2]

Okay here's my take on it.

In the matter of Thomas the person appeared to not have actually been convicted of any crimes but instead was only arrested for them. The fact that the charges were dismissed doesn't mean that your spouse is a good guy... it simply means they didn't have enough evidence to convict him at that time. I think that's what they're saying by referencing Thomas, while he wasn't convicted they believe "his argumentative and confrontational behavior" is an indicator that he's not a good guy and that by being arrested five times (you didn't say if they were all at once or separate issues.. that I can remember) they had to have had at least enough evidence to arrest so that's still not good in their book.

And with Arai "A favorable exercise of administrative discretion is warranted where positive factors, such as family ties, length of residency, and hardship, outweigh adverse considerations". They've decided that the judge properly weighed his five arrests (and I think they're saying they think he's likely to be guilty but the courts couldn't prove it) and his "argumentative and confrontational behavior" against the positive factors and found that he's more bad than good.

I'm definitely thinking there's something in the arrest records or his interview records or whatever that's much worse than you think it is... Have you seen the arrest records to see what they say? That might help.

I've reviewed and re-reviewed his official arrest record and there is nothing there I haven't known about or previously discussed. His arrests are 6 years old and I hoped that we would have had a chance to pass the stupidity of his late teens/early twenties and not be in this position today. Unfortunately looks like we all may be relocating to Morocco if things don't work out in our favor.

Also, these are the facts in the Matter of Thomas: "The record reflects that on November 20, 1992, he was convicted following a trial by jury in the Supreme Court of the State of New York, County of Kings, of murder in the second degree, attempted murder in the second degree, assault in the second degree, kidnapping in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the fourth degree. On December 11, 1992, the respondent was convicted in the same court, this time upon a plea of guilty, of criminal possession of a weapon in the third degree. On January 7, 1993, the court set aside the respondent’s conviction for kidnapping in the second degree as a matter of law. The same day, the court imposed the following sentences for his other convictions: for second-degree murder, 20 years to life; for attempted murder in the second degree, 8 to 24 years; for second degree assault, 2 to 6 years; for criminal possession of a weapon in the second degree, 5 to 15 years; for criminal possession of a weapon in the third degree, 2 to 6 years; and, for criminal possession of a weapon in the fourth degree, 1 year."

Although I understand that it is always a matter of discretion, I just wonder how the IJ/BIA can even draw comparisons between our cases, besides to say that negative things can affect how they use their discretion. I'm keeping my fingers crossed that things work out...

Edited May 11, 2011 by MarocAEHabiby

[MarocAEHabiby 2]

By the way I am a US Citizen, as is our child.

[JimVaPhuong 4,863]

Although I understand that it is always a matter of discretion, I just wonder how the IJ/BIA can even draw comparisons between our cases, besides to say that negative things can affect how they use their discretion. I'm keeping my fingers crossed that things work out...

They're not drawing direct comparisons between the two cases. Obviously, they aren't even close to being the same level. The BIA decision was specifically referring to the fact that an arrest can be viewed as a negative discretionary factor, and cited Thomas as a precedent example of this. Look at exactly what they wrote:

See Matter of Thomas 21 I&N Dec. 20 (BIA 1995) (

holding that an arrest can be considered as a negative discretionary factor

).

When you read a legal decision, and you see citations of other precedent decisions, you have to look at specifically what issue they are addressing when they make the citation. Very rarely are they citing the other case in it's entirety, but using a specific circumstance in another case to make a point about the case they are issuing a decision on.

[Darrienju 2]

I think I can give you some advice on this matter. I submitted a joint motion to reopen with the DHS that has jurisdiction of my case without success. It is very true that getting the DHS to join in the motion to reopen is extremely difficult. Without going too deeply into my immigration history, I will just tell you that I had very favorable factors and almost no adverse factors, having brought to the US as a minor on a valid VISA, having a natural born USC husband, an approved I-130 petition (after a stokes interview), no criminal record, being a graduate student, a record of having paid tax for over ten years, etc.. My only fault was that by the time I became eligible for relief by my marriage to a USC, my removal proceeding had already concluded and the only thing I could do was to submit the joint motion to reopen with the DHS. I learned later that if the motion to reopen is not submitted within a month or so of the EOIR decision, then later when and if the joint MTR is submitted to the DHS, then the DHS can decline to join the motion to reopen for any reason. I don't think you can find a more favorable case than mine and the DHS still declined to join in the motion to reopen, so there you go.

Another option for you would be to have your husband leave the country and apply for a VISA at the Consulate overseas. Post the interview, I think you can submit I-601 and I-212, but you would have to find out what further consequences are to ignoring the deportation order.

[MarocAEHabiby 2]

Just to post an update I have been told that our joint motion to reopen was denied as a matter of discretion on Friday but I didn't want to post until I got info from our atty who was speaking with the trial atty from immigration to confirm they knew of my pregnancy. The pregnancy didn't make a difference at all it seems...so it looks like I will be moving to be with my husband. Now it's time to get into the mode of selling our stuff and finding a job overseas. Thanks for the support everyone!

[JimVaPhuong 4,863]

Just to post an update I have been told that our joint motion to reopen was denied as a matter of discretion on Friday but I didn't want to post until I got info from our atty who was speaking with the trial atty from immigration to confirm they knew of my pregnancy. The pregnancy didn't make a difference at all it seems...so it looks like I will be moving to be with my husband. Now it's time to get into the mode of selling our stuff and finding a job overseas. Thanks for the support everyone!

That sucks. I strongly suspected that this would be the outcome, but it sucks anyway. I'm very sorry.

[MarocAEHabiby 2]

Darrenju,

Thank you for your response, I really appreciate it and I guess I don't feel so bad we were also denied even though clearly our case was worse. Are you back in the US or still abroad? I am hoping to return after a year although that may be wishful thinking. Anyways thanks again for the info and good luck on your case!

[MarocAEHabiby 2]

That sucks. I strongly suspected that this would be the outcome, but it sucks anyway. I'm very sorry.

Thanks again for all your advice, I really appreciated it. Hopefully we will only go upwards from here.

[justashooter 430]

FIVE arrests and still confused??????????? :help:

prolly denied for a combination of the overstay, the arrests, and other life circumstances that would have been tallied by a social worker and presented to the judge before the hearing. lack of steady job or significant education, and subjective things like disposition of personality could be typical of negatives seen in such a report.

at this point, you should save your cash that you are wasting on your lawyer and plan on living in morocco, or maybe spain if he can get a visa to live there.

well i never been to spain,

but i've been to oklahoma.

oh they tell me i was born there,

but i really don't remember.

oklahoma,

not arizona.

what does it matter?

what does it matter?

[MarocAEHabiby 2]

prolly denied for a combination of the overstay, the arrests, and other life circumstances that would have been tallied by a social worker and presented to the judge before the hearing. lack of steady job or significant education, and subjective things like disposition of personality could be typical of negatives seen in such a report.

at this point, you should save your cash that you are wasting on your lawyer and plan on living in morocco, or maybe spain if he can get a visa to live there.

well i never been to spain,

but i've been to oklahoma.

oh they tell me i was born there,

but i really don't remember.

oklahoma,

not arizona.

what does it matter?

what does it matter?

Yeah, I am sure his past arrests are the biggest part of the problem, although job and education should not have been relevant (he had a good job and studied). We will apply for a waiver at some point because I don't want to live in Morocco the rest of my life and to be honest I am not too keen on moving there to begin with because of the lack of jobs. If a Moroccan can't find a job how is it that I will be able to find one (I don't speak Arabic or French) and many English teacher jobs look for someone who has a Masters and/or a certificate for teaching English. Thanks for your "advice" though...