Traveling with Advance Parole while on removal proceedings with DACA

[mobu888 1]

I am a DACA recipient married to a naturalized U.S. citizen, and I am currently in the process of applying for a green card. However, I have an administratively closed removal case. I entered the U.S. legally and have no criminal record. My lawyer submitted the I-130 petition and a joint motion with OPLA in June and July of 2023, respectively, but I have not received any responses to either at this time.

 

In light of the lack of progress, I applied for Advance Parole. Recently, I discovered that OPLA may not respond to joint motions because they are not obligated to. Therefore, I asked my lawyer to file a motion to recalendar my administratively closed case directly with the Board of Immigration Appeals (BIA), as they were responsible for the administrative closure. My lawyer has prepared the motion and was about to submit it until I told him that I applied for AP.

 

My lawyer has advised against traveling on AP while the motion to recalendar is pending. He believes that doing so could jeopardize my case and my re-entry into the U.S., given that the motion would reactivate my administratively closed case. He advised to either submit the motion and don't travel, or travel and submit the motion after I return. However, I've read multiple stories of DACA recipients traveling and returning successfully with AP, despite having an active deportation/removal case.

 

Is my lawyer being overly cautious, or is this advice generally sound given my situation? Thank you in advance.

[Boiler 45,445]

Why risk it?

[TBoneTX 45,259]

It depends how we define "overly cautious," and what risk you wish to take.

 

Just because multiple (presumably anecdotal) stories of others suggest that they traveled successfully doesn't mean that (1) your situation is identical to theirs or that (2) what they chose to do was advisable.  These people may have all dodged the metaphorical bullets.

 

From your description, your lawyer sounds alert, engaged, and concerned about your welfare.  If true, then you're highly fortunate to have associated with him.  I suggest that you follow his recommendations precisely, given the potential risk that you face.

Edited August 1 by TBoneTX
clarity

[mobu888 1]

Because my work is asking for me to travel and to visit my grandmother who is ill. And also because my I-130 is still pending approval, I heard it's better to have it approved before trying to recalendar and terminate the removal proceedings.

 

I definitely appreciate my lawyer and am glad he's concerned for me. 

[Boiler 45,445]

22 minutes ago, mobu888 said:

 I heard it's better to have it approved before trying to recalendar and terminate the removal proceedings.

 

I have not heard that, I have heard under the current regime it is pretty much a given so I would want that sorted asap.

[Family 3,988]

As long as you requested OPLA to Join or Not Oppose, you just forge ahead and file …with court of jurisdiction. If you file w BIA, don’t you wait longer ..since you first wait to get on their docket  and then still wait to get on court’s…? What is your attorneys position on filing w court?

‘Tagging @Demise who after hearing crickets for too long, successfully and artfully got a gov attorney on phone and DIY the hearing .

Also tagging  @Verrou who pressed her attorney very hard to file and stop waiting.

‘As for travel..your attorney is just the right amount of cautious. Go before or wait. Don’t take for granted an unknown variable…

 

[mobu888 1]

My removal order was given by the LA court. But the BIA was the one who admin-closed my case, so my lawyer said I have to submit the motion to recalendar to BIA first. Then the BIA will send it back to the LA court, where they will recalendar the case for a hearing. He said once the case is in the court's docket, the government attorney (ICE/OPLA) will be more responsive to the Prosecutorial Discretion. 

 

In regards to travel, yes I'm planning to follow his advise. Just waiting to see whether my AP or 130 will be approved first.

 

@Family Do you recommend filing the motion to recalendar with a pending 130?

 

Thank you for your insights!

[Family 3,988]

1 minute ago, mobu888 said:

My removal order was given by the LA court. But the BIA was the one who admin-closed my case, so my lawyer said I have to submit the motion to recalendar to BIA first. Then the BIA will send it back to the LA court, where they will recalendar the case for a hearing. He said once the case is in the court's docket, the government attorney (ICE/OPLA) will be more responsive to the Prosecutorial Discretion. 

 

In regards to travel, yes I'm planning to follow his advise. Just waiting to see whether my AP or 130 will be approved first.

 

@Family Do you recommend filing the motion to recalendar with a pending 130?

 

Thank you for your insights!

No. I recommend waiting for I-130 approval. You can try to expedite your AP , if for example grandma is elderly, frail and has health issues. A doctors letter, translation and a call for Infopass .

[Family 3,988]

13 minutes ago, mobu888 said:

He said once the case is in the court's docket, the government attorney (ICE/OPLA) will be more responsive to the Prosecutorial Discretion

Honestly, they just don’t answer..the Miss L class action lawsuit is a strong indicator that they dodge the volume workload. ..but once I-130 is approved, go for it. ..they won’t oppose
 

https://www.ice.gov/about-ice/opla/MsL
 

Edited August 1 by Family

[mobu888 1]

@Family

54 minutes ago, Family said:

No. I recommend waiting for I-130 approval. You can try to expedite your AP , if for example grandma is elderly, frail and has health issues. A doctors letter, translation and a call for Infopass .

Unfortunately her condition is a chronic mental condition, and not dire enough (definitely frail but not on deathbed). Thus, I don't think my infopass request would be granted. My AP receipt date is July 3, so I'm probably looking at a late October approval (hopefully).

Edited August 1 by mobu888

[mobu888 1]

42 minutes ago, Family said:

Honestly, they just don’t answer..the Miss L class action lawsuit is a strong indicator that they dodge the volume workload. ..but once I-130 is approved, go for it. ..they won’t oppose
 

https://www.ice.gov/about-ice/opla/MsL
 

Sighh... yeah just waiting for that 130 approval. It's been 13.5 months already. I asked a senator to inquire on my behalf to USCIS recently, hopefully that will do something. Otherwise, I have to wait until April 11, 2025 before I can inquire with USCIS for outside of normal processing times.

[mobu888 1]

3 hours ago, Boiler said:

I have not heard that, I have heard under the current regime it is pretty much a given so I would want that sorted asap.

Have you known/heard of anyone recently getting their removal proceedings terminated successfully with just a pending 130? I know it's a case by case basis and up to the judge, but was just wondering if you know of any. Thank you!

[Family 3,988]

19 minutes ago, mobu888 said:

Have you known/heard of anyone recently getting their removal proceedings terminated successfully with just a pending 130? I know it's a case by case basis and up to the judge, but was just wondering if you know of any. Thank you!

I don’t know…do you know of any?
I know they terminated for a pending Uvisa..but even VAWAS waited for approval in hand , not long ago.

 

Don’t let it get to you. It will happen. Not sure your attorney would want the extra work, but sometimes sending in Supplemental Evidence ( ex more marriage proofs ) …gets a human to look at file and even work on it 😂. 

[Boiler 45,445]

Seems it comes up all the time on Hackings show

[Demise 1,277]

13 hours ago, mobu888 said:

I am a DACA recipient married to a naturalized U.S. citizen, and I am currently in the process of applying for a green card. However, I have an administratively closed removal case. I entered the U.S. legally and have no criminal record. My lawyer submitted the I-130 petition and a joint motion with OPLA in June and July of 2023, respectively, but I have not received any responses to either at this time.

 

In light of the lack of progress, I applied for Advance Parole. Recently, I discovered that OPLA may not respond to joint motions because they are not obligated to. Therefore, I asked my lawyer to file a motion to recalendar my administratively closed case directly with the Board of Immigration Appeals (BIA), as they were responsible for the administrative closure. My lawyer has prepared the motion and was about to submit it until I told him that I applied for AP.

 

My lawyer has advised against traveling on AP while the motion to recalendar is pending. He believes that doing so could jeopardize my case and my re-entry into the U.S., given that the motion would reactivate my administratively closed case. He advised to either submit the motion and don't travel, or travel and submit the motion after I return. However, I've read multiple stories of DACA recipients traveling and returning successfully with AP, despite having an active deportation/removal case.

 

Is my lawyer being overly cautious, or is this advice generally sound given my situation? Thank you in advance.

I wouldn't try the AP while in removal proceedings. The outcomes have been iffy at times. Now you don't have a removal order but why risk it, you came legally, AP won't improve the case in any way, only thing that does is clear a prior EWI if you marry a citizen. It's risk for no reward.

 

You tried to ask OPLA to join a motion, since they didn't respond it's time to just go around them.

 

Personally I'd wait for the I-130 to be approved first though, makes getting a termination much easier.

 

Matter of Coronado Acevedo (A.G. 2022) returned the power to terminate removal proceedings back to Immigration Judges and the BIA. So instead of asking OPLA to please kindly join your motion just have your lawyer file a "Motion to recalendar and terminate without prejudice". Do cite Coronado Acevedo in it as BIA having the power to terminate once again, have the lawyer list the facts of the case:

You have a pending I-130. (attach proof as exhibit, again, best to wait for approval on this first).

You have entered US legally (attach proof as exhibit).

You are prima facie eligible for adjustment of status and will file I-485 with USCIS as soon as these proceedings are terminated.

You tried to contact OPLA for a joint termination/dismissal however they failed to respond.

You are seeking a termination without prejudice, if you are found inadmissible, the government may file a new NTA against you.

 

Then just have the lawyer file the motion with the BIA and serve a copy onto OPLA. Once again OPLA might:

1. Do nothing.

2. Not oppose.

3. Oppose.

 

If they do 1 or 2, then BIA will likely just grant it. If they do 3 then it it's up to the BIA what to do here. 95% chance they'll just do it. In the 5% that they deny it, then file a Motion to Recalendar and Remand, and once the case is back at the local court file I-485 with the court.

Edited August 1 by Demise