Can USC withdraw joint ROC ? (merged)

[mindthegap 2,590]

On 11/14/2019 at 9:38 AM, mindthegap said:

I will dig out the relevant legalese when I am home for you. 

 

"D. Multiple Filings

There are no regulatory limitations on how many times a CPR may file an I-751 petition. For example, a CPR who initially files a jointly filed I-751 petition may subsequently file an I-751 waiver request Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions Additions to Adjudicator’s Field Manual, Chapter 25.1(g)(6) and 25.1(h)(4) and Appendix XXXX (AFM Update AD09-48) petition. However, if an ISO encounters a subsequent I-751 petition that is appears identical to a previously denied petition, the ISO will defer to the previous decision and will review the new petition for additional evidence that may overcome the previous basis for denial."

 

Plus more contained in here:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static Files Memoranda/Adjudication of Form I-751100909.pdf

 

I have other relevant documents scattered about the place also.

 

[HappyAndIKnowIt 24]

1 hour ago, mindthegap said:

 

"D. Multiple Filings

There are no regulatory limitations on how many times a CPR may file an I-751 petition. For example, a CPR who initially files a jointly filed I-751 petition may subsequently file an I-751 waiver request Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions Additions to Adjudicator’s Field Manual, Chapter 25.1(g)(6) and 25.1(h)(4) and Appendix XXXX (AFM Update AD09-48) petition. However, if an ISO encounters a subsequent I-751 petition that is appears identical to a previously denied petition, the ISO will defer to the previous decision and will review the new petition for additional evidence that may overcome the previous basis for denial."

 

Plus more contained in here:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static Files Memoranda/Adjudication of Form I-751100909.pdf

 

I have other relevant documents scattered about the place also.

 

If I understand that memo correctly, she can continue to file I-751's which will repeatedly put her removal proceedings on hold as long as she never receives a Final Order of Removal, in which case, the game is over ?

[HappyAndIKnowIt 24]

On 11/13/2019 at 12:07 PM, Villanelle said:

I agree with everything posted above. USCIS is like dealing with a computer. Because the 751 needs to be filed joint (unless you use a waiver) but when its filed joint and then you withdraw USCIS says oh you didnt show good faith with this joint filing since both people are not on it. It doesnt preclude her from filing a waiver where she can show good faith on her own, it just means her one sided joint filing can not show that. I hope that makes sense. 

 

I also dont believe that the new NTA policy applies to 751s? I havent seen any cases recently where NTA was issued promptly for a 751 case. 

 

I can also tell you I know of a case from a long time ago where FDNS was contacted and given solid proof of something fraudulently done by the alien who was going through ROC. The USC who reported it had a very good experience with FDNS, although they were not specifically updated about what was going on, the Officer let them know in a round about way that they were taking it seriously and taking action on it. Apparently FDNS contacted the alien and its unknown exactly what was said but whatever it was caused the alien to abandon the ROC and leave the US as it seemed FDNS frightened them as to what could happen if they continued the process. We can only hope for a similar outcome to occur with your situation. 

 

So the only other thing I can advise you is if you have any other evidence to give to FDNS give it to them. Anything where she lied for a benefit of some kind. Does not have to be immigration related. If she made false reports to the police or a court or applied for food stamps with incorrect info- any of that will help. 

NTA received today, so I can confirm the policy applies for a denied I-751.  I also know that her attorney filed a divorce waiver I-751 in November 2019.  I am currently unaware of the status of that petition.

[Going through 5,671]

Glad you are still updating us on all of this---sincerely thank you for that.

 

With the i-751 divorce waiver filing, you won't really be privy to any of the process/status info (since the waiver removes the USC from the petition completely), unless she gives you any sort of update herself or you're able to gleam it from outside sources.

[HappyAndIKnowIt 24]

Ok, so I guess I have an update and a question.

 

Wife was convicted of Domestic VIolence at trial.  I have reason to believe that MIL may be charged with perjury for her testimony, but I will update on that as I learn more.

 

My question is that now that my wife has a DV conviction, will her already-scheduled Master Calendar hearing take this conviction into account or will it only consider the original reasons on the NTA ?  Could USCIS update with a new NTA including the DV ?  The date is still a couple months away.  Let's assume USCIS was aware of the DV charge, but not the conviction without their own followup which they may or may not perform.

[TBoneTX 45,284]

Bring up the new information at the hearing.

[Villanelle 4,122]

On 2/12/2020 at 12:07 AM, HappyAndIKnowIt said:

 

 

My question is that now that my wife has a DV conviction, will her already-scheduled Master Calendar hearing take this conviction into account or will it only consider the original reasons on the NTA ?  Could USCIS update with a new NTA including the DV ?  

Honestly Im not sure anymore; its like every time you turn around Trump is changing stuff.  Not sure how much you know about the general set up. Basically its all under DHS-Homeland Security. Under that umbrella is CBP-border, ICE-enforcement,and USCIS-paperworkadjudications. 

 

CBP is obviously the border. They also have authority to arrest/detain/investigate up to 99 miles from land borders. Not sure where you are but Im going to assume they are N/A. Then theres ICE. ICE covers the rest of the US CBP doesnt. They arrest/detain/investigate and handle removals. ICE attorneys represent the gov in immigration court. So to compare to local authorities ICE is the police/district attorney in your town. USCIS is more like the DMV. They issue documents, adjudicate cases etc. USCIS is not considered to be law enforcement like CBP and ICE are. But they can send people to court. USCIS does not arrest/detain and their investigations only cover paperwork issues/fraud. When they have a case they have to give it to ICE to prosecute. 

 

Years ago Obama made significant changes to things. Mainly directives to ICE and USCIS about not sending people to court for lower ranked offensives and to just focus on the major stuff. Trump has rolled a lot if not all of it back. So right now her DV charge should be able to be sent to the court- previously they might not have even sent it. The question is who is going to send it to court. The judge cant just create a new charge for her out of thin air. Someone under the DHS umbrella needs to submit it to the court. The most appropriate person to do such would be the ICE attny. Now I doubt that you are going to be given an opportunity to speak with the ICE attny at the court hearing. You are not a part of her case and would be there as a spectator and not any kind of witness. Your best bet is to reach out to the FDNS Officers you spoke with before.  Then they can either get it to court through USCIS or ICE. Her DV charge has 2 potential impacts. One is being found removable for the charge. The other is it may prevent her from removing conditions which is the reason she is in court. Make sure you attempt to follow up on both angles with FDNS. 

 

But just to warn you being found guilty of DV does not automatically = deportation. Im going to link you a pdf from July 17 from Immigrant Legal resource center that outlines an overview of dv deportation grounds and what was then new case laws. I have no idea if theres any new case laws or presidents but Im assuming if there is its minor details and not major changes. I kind of stopped following since it wasnt going to help my situation.  Anyway it will give you a general overview of what possible defenses are, forms of relief available, and a place to start to try to figure out if her charges even qualify or if she could dispute that they do qualify.   https://www.ilrc.org/sites/default/files/resources/case_update_dv_deport_ground-20180627.pdf

 

For ROC angle- Perhaps maybe the charges combined with your contact to FDNS will be enough to get her ROC denied. Perhaps not. Browse VJ. I believe in the last year there have been at least 2-3 threads with immigrants charged with DV going through ROC and they all made it through OK. When someone posts they have a DV charge as an LPR they are usually advised to first try to get the charge changed or amended. 

[HappyAndIKnowIt 24]

18 hours ago, TBoneTX said:

Bring up the new information at the hearing.

 

I don't think I will be a part of it.

 

58 minutes ago, Villanelle said:

Honestly Im not sure anymore; its like every time you turn around Trump is changing stuff.  Not sure how much you know about the general set up. Basically its all under DHS-Homeland Security. Under that umbrella is CBP-border, ICE-enforcement,and USCIS-paperworkadjudications. 

 

CBP is obviously the border. They also have authority to arrest/detain/investigate up to 99 miles from land borders. Not sure where you are but Im going to assume they are N/A. Then theres ICE. ICE covers the rest of the US CBP doesnt. They arrest/detain/investigate and handle removals. ICE attorneys represent the gov in immigration court. So to compare to local authorities ICE is the police/district attorney in your town. USCIS is more like the DMV. They issue documents, adjudicate cases etc. USCIS is not considered to be law enforcement like CBP and ICE are. But they can send people to court. USCIS does not arrest/detain and their investigations only cover paperwork issues/fraud. When they have a case they have to give it to ICE to prosecute. 

 

Years ago Obama made significant changes to things. Mainly directives to ICE and USCIS about not sending people to court for lower ranked offensives and to just focus on the major stuff. Trump has rolled a lot if not all of it back. So right now her DV charge should be able to be sent to the court- previously they might not have even sent it. The question is who is going to send it to court. The judge cant just create a new charge for her out of thin air. Someone under the DHS umbrella needs to submit it to the court. The most appropriate person to do such would be the ICE attny. Now I doubt that you are going to be given an opportunity to speak with the ICE attny at the court hearing. You are not a part of her case and would be there as a spectator and not any kind of witness. Your best bet is to reach out to the FDNS Officers you spoke with before.  Then they can either get it to court through USCIS or ICE. Her DV charge has 2 potential impacts. One is being found removable for the charge. The other is it may prevent her from removing conditions which is the reason she is in court. Make sure you attempt to follow up on both angles with FDNS. 

 

But just to warn you being found guilty of DV does not automatically = deportation. Im going to link you a pdf from July 17 from Immigrant Legal resource center that outlines an overview of dv deportation grounds and what was then new case laws. I have no idea if theres any new case laws or presidents but Im assuming if there is its minor details and not major changes. I kind of stopped following since it wasnt going to help my situation.  Anyway it will give you a general overview of what possible defenses are, forms of relief available, and a place to start to try to figure out if her charges even qualify or if she could dispute that they do qualify.   https://www.ilrc.org/sites/default/files/resources/case_update_dv_deport_ground-20180627.pdf

 

For ROC angle- Perhaps maybe the charges combined with your contact to FDNS will be enough to get her ROC denied. Perhaps not. Browse VJ. I believe in the last year there have been at least 2-3 threads with immigrants charged with DV going through ROC and they all made it through OK. When someone posts they have a DV charge as an LPR they are usually advised to first try to get the charge changed or amended. 

Funny, I had just read that before coming here.

 

Definitely, I would contact the FDNS officer to notify of the conviction, but I am unlikely to do that.  I was more wondering what will happen if I basically sit back and watch, without notifying anyone.   To inform them, I think it would speed up the clock, as I know my wife's attorney has re-filed with divorce waiver, even though we're still married.  USCIS could probably simply take the info on the conviction and deny the application outright, which would  eliminate her reason to extend until the divorce decree comes in.  I have to assume the ICE attorney will have the DV charge in his file, as the FDNS officers knew.  Even if he had no update, he could simply ask at the hearing, at a minimum.  Unless something changes, I'm not particularly interested in accelerating her deportation.  I might even be open to helping her avoid removal, although I'm not sure there is much I would be able to do at this point, and I am far from that point with her.

 

The DV statute is Ohio Revised Code 2919.25 (a) http://codes.ohio.gov/orc/2919.25 .  I'm pretty sure it qualifies since it requires the relationship and the physical violence as it was charged and convicted as a first degree Misdemeanor.

[Lemonslice 4,838]

I might have lost track, but have your divorce and custody been finalized?

Edited February 14, 2020 by Lemonslice

[HappyAndIKnowIt 24]

20 minutes ago, Lemonslice said:

I might have lost track, but have your divorce and custody been finalized?

Still married.  Our divorce trial was scheduled for last week, but it was pushed back to May because the DV trial was scheduled for this week.  The divorce case needed the criminal trial to be resolved.  Divorce originally filed in January 2019...

 

Custody was modified because my wife and MIL moved out in December.  Previous custody considered us living in the same residence.  It's a 50-50 split of days, over a two-week rotation, with the exception that when she works on her custody days, she has to deliver him to me, if I choose.  I have yet to allow her to leave my son with MIL since the revised custody.  At this point, her accusations that I could not care for my son have been obliterated.

 

On the custody / divorce, considering her removal proceedings, her domestic violence conviction, MIL's possible perjury charge which carries a 9-month imprisonment minimum, and any doubt about my ability to take care of my son eliminated, I feel pretty good about my position.

[Lemonslice 4,838]

18 minutes ago, HappyAndIKnowIt said:

Still married.  Our divorce trial was scheduled for last week, but it was pushed back to May because the DV trial was scheduled for this week.  The divorce case needed the criminal trial to be resolved.  Divorce originally filed in January 2019...

 

Custody was modified because my wife and MIL moved out in December.  Previous custody considered us living in the same residence.  It's a 50-50 split of days, over a two-week rotation, with the exception that when she works on her custody days, she has to deliver him to me, if I choose.  I have yet to allow her to leave my son with MIL since the revised custody.  At this point, her accusations that I could not care for my son have been obliterated.

 

On the custody / divorce, considering her removal proceedings, her domestic violence conviction, MIL's possible perjury charge which carries a 9-month imprisonment minimum, and any doubt about my ability to take care of my son eliminated, I feel pretty good about my position.

Please keep us updated. Considering felons do not necessarily lose custody, it's going to be interesting to see what will happen. 

[HappyAndIKnowIt 24]

9 hours ago, Lemonslice said:

Please keep us updated. Considering felons do not necessarily lose custody, it's going to be interesting to see what will happen. 

I will.  My wife was only convicted of a misdemeanor, although it was domestic violence and carries negative consequences for her not only in immigration, but also in the "best interest" considerations for custody.

 

MIL's possible upcoming perjury is a felony, but she is not a custodial option.  However, I see it playing in a couple ways.  First, the people around the child are relevant, and a felony conviction for perjury, especially since it was for a lie to her own daughter which lead to the DV charge, would reflect very negatively.  Also, a Court being asked to have my son sent out of the country would likely be affected by the fact that not only does the mother have a DV conviction, but her mother would have a perjury conviction.  Since local court orders are unenforceable in Ukraine, their honesty is very much an issue about returning the child.  Perjury would be a very big deal, I believe.

[HappyAndIKnowIt 24]

Would protecting her daughter, and perhaps infant son, from abuse, when daughter has no other family in the U.S., be a potential valid reason for an I-539 extension request filed by MIL ?  I am starting to think this is the reason they used.

 

Also, if such an allegation of abuse were made to justify an I-539 extension request, would USCIS be legally unable to interview me to verify this claim ?

 

The puzzle is starting to take shape, I think.

[HappyAndIKnowIt 24]

... and the drama continues.

 

The Europe travel ban caused the cancellation of MIL's flight home - two days after the ban took effect.

 

Also, I checked USCIS case status online for the first time in a while (I had given up due to no updates since fingerprints long ago), and found the I-539 filed in March / April 2019 has been transferred to another office as of a couple weeks ago.  Mind you, this I-539 was to request permission for MIL to stay until October 2019.

 

Can anyone provide a guess why they would bother with an I-539 which is now about 6 months past the requested return date ?

 

My theory is that it may be used in my wife's immigration court hearing, which is coming up in mid-April 2020.  I strongly suspect they made some abuse allegation of some sort against me and they intend to use it against my wife next month.

[HappyAndIKnowIt 24]

According to my wife, the attorney refused to prepare a third Form I-539 extension request, saying that it would be a waste of money and that no other attorney would do it either.  I guess even attorneys have limits, at least this one seems to.

 

One year of overstay occurs in a couple weeks.  I think this is now 10-year ban territory, although I didn't expect her to get another visa anyways.