Whose decision is it
 

Whose decision is it

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Can you appeal an I-485? Who to?

Can you appeal an I-485? Who to?

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Whose decision is it Whose decision is it Document Transcript

  • Whose Decision Is It, Anyway?An immigrant relative petition (I-130) and adjustment of status application (I-485) aregenerally prohibited from approval on behalf of an alien spouse when the marriageoccurred while the alien spouse was already in some form of removal proceedings. Anexception exists if it can be proven by clear and convincing evidence that the marriagewas entered into in good faith and is proven to be bona fide, that is, true and valid andwith the intention of starting a life together. The burden of proof for the I-130 is on thepetitioner and the burden of proof for the I-485 is on the applicant (I-130 beneficiary).When the I-485 is denied, or the concurrently filed I-485 and I-130 are denied, solely forthe reason of a failure to show by the clear and convincing evidence required to qualifyfor the bona fide marriage in good faith exemption, there is only one level ofadministrative appellate review allowed under the law. That single administrativeappellate review is a tricky one to figure out. The regulations indicate the review may beto the AAO, however, if the case involves other issues outside AAO authority, then thecase should go to EOIR. USCIS has the authority to grant or deny the I-130 which hasdirect appeal to the BIA. An IJ is without any authority to decide an I-130.An I-485 may be decided in the first instance by either USCIS or an IJ. Normally, ifUSCIS denies an I-485 it may be renewed before an IJ and an IJ denial may be appealedto the BIA. Although the I-485 may be renewed before the IJ, the IJ is not actuallyperforming an “administrative review” as the IJ is in another agency and as to thedecision being made, is on par with the USCIS Officer. The IJ decision is subject to alevel of administrative review by the BIA within the same agency, EOIR.It is certainly complicated to try figure out who has appellate authority in some cases.Now, if the case also involves certain grounds of inadmissibility that could be waived,one also has to take that into account. Certain grounds can be waived and most waiverscan be decided by USCIS and appealed to AAO. However, IF the availability of a waiveris dependent on an interpretation of an underlying criminal statute, who can and whoshould make that determination in the first instance?8 CFR PART 245—ADJUSTMENT OF STATUS TO THAT OF PERSONADMITTED FOR PERMANENT RESIDENCE§ 245.1 Eligibility.(c) Ineligible aliens. The following categories of aliens are ineligible to apply foradjustment of status to that of a lawful permanent resident alien under section 245 of theAct:*****(8) Any alien who seeks to adjust status based upon a marriage which occurred on orafter November 10, 1986, and while the alien was in exclusion, deportation, or removalproceedings, or judicial proceedings relating thereto. 1
  • (i) Commencement of proceedings. The period during which the alien is indeportation, exclusion, or removal proceedings or judicial proceedings relatingthereto, commences: (A) With the issuance of the Form I–221, Order to Show Cause and Notice of Hearing prior to June 20, 1991; (B) With the filing of a Form I–221, Order to Show Cause and Notice of Hearing, issued on or after June 20, 1991, with the Immigration Court; (C) With the issuance of Form I–122, Notice to Applicant for Admission Detained for Hearing Before Immigration Judge, prior to April 1, 1997, (D) With the filing of a Form I–862, Notice to Appear, with the Immigration Court, or (E) With the issuance and service of Form I–860, Notice and Order of Expedited Removal.(ii) Termination of proceedings. The period during which the alien is in exclusion,deportation, or removal proceedings, or judicial proceedings relating thereto,terminates: (A) When the alien departs from the United States while an order of exclusion, deportation, or removal is outstanding or before the expiration of the voluntary departure time granted in connection with an alternate order of deportation or removal; (B) When the alien is found not to be inadmissible or deportable from the United States; (C) When the Form I–122, I–221, I–860, or I–862 is canceled; (D) When proceedings are terminated by the immigration judge or the Board of Immigration Appeals; or (E) When a petition for review or an action for habeas corpus is granted by a Federal court on judicial review.(iii) Exemptions. This prohibition shall no longer apply if: (A) The alien is found not to be inadmissible or deportable from the United States; (B) Form I–122, I–221, I–860, or I–862, is canceled; 2
  • (C) Proceedings are terminated by the immigration judge or the Board of Immigration Appeals; (D) A petition for review or an action for habeas corpus is granted by a Federal court on judicial review; (E) The alien has resided outside the United States for 2 or more years following the marriage; or (F) The alien establishes the marriage is bona fide by providing clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, was not entered into for the purpose of procuring the aliens entry as an immigrant, and no fee or other consideration was given (other than to an attorney for assistance in preparation of a lawful petition) for the filing of a petition.(iv) Request for exemption. No application or fee is required to request theexemption under section 245(e) of the Act. The request must be made in writingand submitted with the Form I–485, Application for Permanent Residence. Therequest must state the basis for requesting consideration for the exemption andmust be supported by documentary evidence establishing eligibility for theexemption.(v) Evidence to establish eligibility for the bona fide marriage exemption. Section204(g) of the Act provides that certain visa petitions based upon marriagesentered into during deportation, exclusion or related judicial proceedings may beapproved only if the petitioner provides clear and convincing evidence that themarriage is bona fide. Evidence that a visa petition based upon the same marriagewas approved under the bona fide marriage exemption to section 204(g) of theAct will be considered primary evidence of eligibility for the bona fide marriageexemption provided in this part. The applicant will not be required to submitadditional evidence to qualify for the bona fide marriage exemption provided inthis part, unless the district director determines that such additional evidence isneeded. In cases where the district director notifies the applicant that additionalevidence is required, the applicant must submit documentary evidence whichclearly and convincingly establishes that the marriage was entered into in goodfaith and not entered into for the purpose of procuring the aliens entry as animmigrant. Such evidence may include: (A) Documentation showing joint ownership of property; (B) Lease showing joint tenancy of a common residence; (C) Documentation showing commingling of financial resources; 3
  • (D) Birth certificates of children born to the applicant and his or her spouse; (E) Affidavits of third parties having knowledge of the bona fides of the marital relationship, or (F) Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States. (vi) Decision. An application for adjustment of status filed during the prohibited period shall be denied, unless the applicant establishes eligibility for an exemption from the general prohibition. (vii) Denials. The denial of an application for adjustment of status because the marriage took place during the prohibited period shall be without prejudice to the consideration of a new application or a motion to reopen a previously denied application, if deportation or exclusion proceedings are terminated while the alien is in the United States. The denial shall also be without prejudice to the consideration of a new application or motion to reopen the adjustment of status application, if the applicant presents clear and convincing evidence establishing eligibility for the bona fide marriage exemption contained in this part. (viii) Appeals. An application for adjustment of status to lawful permanent resident which is denied by the district director solely because the applicant failed to establish eligibility for the bona fide marriage exemption contained in this part may be appealed to the Associate Commissioner, Examinations, in accordance with 8 CFR part 103. The appeal to the Associate Commissioner, Examinations, shall be the single level of appellate review established by statute. [Associate Commissioner, Examinations = AAO]INA § 245 ADJUSTMENT OF STATUS OF NONIMMIGRANT TO THAT OF PERSONADMITTED FOR PERMANENT RESIDENCE(e) (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visaon the basis of a marriage which was entered into during the period described in paragraph (2)may not have the aliens status adjusted under subsection (a).(2) The period described in this paragraph is the period during which administrative or judicialproceedings are pending regarding the aliens right to be admitted or remain in the United States.(3) Paragraph (1) and section 204(g) shall not apply with respect to a marriage if the alienestablishes by clear and convincing evidence to the satisfaction of the Attorney General that themarriage was entered into in good faith and in accordance with the laws of the place where themarriage took place and the marriage was not entered into for the purpose of procuring the aliens 4
  • admission as an immigrant and no fee or other consideration was given (other than a fee or otherconsideration to an attorney for assistance in preparation of a lawful petition) for the filing of apetition under section 204(a) or subsection (d) or (p) of section 214 with respect to the alienspouse or alien son or daughter. In accordance with regulations, there shall be only one levelof administrative appellate review for each alien under the previous sentence.INA § 204 PROCEDURE FOR GRANTING IMMIGRANT VISAS(a) (1) (A) (i) Except as provided in clause (viii), any citizen of the United States claiming thatan alien is entitled to classification by reason of a relationship described in paragraph (1), (3), or(4) of section 203(a) or to an immediate relative status under section 201(b)(2)(A)(i) may file apetition with the Attorney General for such classification.(ii) An alien spouse described in the second sentence of section 201(b)(2)(A)(i) also may file apetition with the Attorney General under this subparagraph for classification of the alien (and thealiens children) under such section.*****(g) Notwithstanding subsection (a), except as provided in section 245(e)(3) , a petition may notbe approved to grant an alien immediate relative status or preference status by reason of amarriage which was entered into during the period described in section 245(e)(2) , until the alienhas resided outside the United States for a 2-year period beginning after the date of the marriage. 5