Margaret W. Wong & Associates - Immigration Lawyers
Tending to all your immigration needs

Success Stories: Federal Court Appeals & Other Appeals

Is yours next?

FIRM OVERVIEW

Margaret W. Wong & Associates LLC is a full-service immigration law practice that provides legal advice and representation to people and companies in the United States. The firm has over 80 years of combined legal experience among its attorneys and serves its clients from offices in Cleveland, New York City, Los Angeles, Chicago, Atlanta, Nashville, Columbus, Minneapolis, and Raleigh. Contact us here to schedule a consultation to discuss your needs. 

Years of Patient Appeals
Huge Circuit Court Win
Precedent-Setting Deportation Case
9th Circuit of Appeals
BIA 212(K) Waiver
Federal Court for Erroneous Decision
Never Give Up
En Banc Decision for Doctor
BIA Appeal Won
Malaysian MTR and GC
Ineligible for Asylum?
MTR Improperly Denied
Marriage Fraud Appeal INA
Insufficient Notice to Appear
Judge "Believes" Deception
Buying Our Client Time

Withholding of removal granted after years of patient appeals before the eleventh circuit

Our client hired us after his Withholding of Removal Application was denied by the Immigration Judge and Board of Immigration Appeals (BIA).  He had not argued for asylum eligibility because he did not file within one year.  We took over the case and filed a petition for review with the Eleventh Circuit Court of Appeals.  Attorney Scott Bratton filed the briefs and argued the case at the Eleventh Circuit.  After considering the arguments, the petition was granted as the Court agreed that our client showed that he was persecuted in the past while in Indonesia because he was Chinese.  The case was remanded to the Board of Immigration Appeals and then the Immigration Judge for further analysis.  Specifically, the Immigration Judge had to decide whether there was a fundamental change in circumstances since the persecution had occurred so long ago and whether our client could safely and reasonably relocate.  We filed a detailed written brief and evidence arguing that there was not a fundamental change in circumstances and the relocation was not something that could safely and reasonably be done.  We argued that the Immigration Judge should grant withholding of removal.  DHS opposed our request.  After considering the evidence, the Immigration Judge granted withholding of removal in December 2016.  Our client can now stay and work in the United States.  Scott Bratton handled the case. (Back to Top)

ANOTHER HUGE CIRCUIT COURT WIN FOR SCOTT BRATTON

On June 6, 2016, the Third Circuit Court of Appeals issued a 43-page precedential decision striking down the regulation that precluded our client from adjusting status.

Our client’s mother was married to a United States citizen when our client was over 18 but under 21. Her mother came as a K-3 nonimmigrant and our client entered the United States as a K-4. Our client’s mother was able to adjust her status. However, although our client was legally admitted as a K-4 nonimmigrant to join her mother, she was not permitted to adjust status. Her application was denied because the applicable regulation requires that all K-4s adjust status through being a “child” of their USC stepparent and our client could not adjust status through this route because she did not qualify as the “child” of her stepfather under the law since the relationship did was not established prior to her 18th birthday. We argued that she was eligible to adjust status either like K-2s (who can file for adjustment without a separate visa petition) or as the “child” of the K-3, who in this case was her mother.

The case had a long procedural history. After the adjustment of status denial, we took over the case and filed a federal complaint in the United States District Court in New Jersey. However, the case was dismissed after our client was placed in removal proceedings as a result of being out of status. This was done by immigration as a way to keep us out of federal court. We did not stop fighting.

The removal case was heard before an Immigration Judge in Newark, NJ. Due to an adverse precedent decision on the same issue by the Board of Immigration Appeals (Matter of Akram) and the fact that an Immigration Judge cannot find a regulation invalid, we knew we would have to take this up to the Third Circuit. Therefore, we set up the case knowing we would one day be arguing the legal issues in the Third Circuit Court of Appeals. Relying on Matter of Akram, a precedent decision on the same issue, the Immigration Judge and Board of Immigration Appeals found our client ineligible to adjust status because she entered on a K-4 visa and the stepparent relationship was established after her 18th birthday.

We filed a petition for review with the Third Circuit. Mr. Bratton prepared and filed very detailed briefs setting forth why the regulation is invalid. Mr. Bratton went step-by-step through the legislative history of K visas and analyzed the pertinent statutes and regulations. The case was then set for oral argument in October 2015. Mr. Bratton spent days preparing for argument since the case was extremely complex and involved the interplay of various statutes and regulations. At argument, each side was asked tough questions. The case was taken under advisement.

On June 6, 2016, we received the good news that our petition for review was granted. The Third Circuit found the regulation relied upon by USCIS, the IJ, and BIA was invalid. The regulation made it impossible for someone in our client’s position to adjust status (since she was over 18 at the time of her mother’s marriage). The Third Circuit agreed with us that the regulation departs from the plain language of the statute, contravenes Congressional intent, and exceeds the scope of the Attorney General’s authority. The case was remanded to allow DHS and the Attorney General to provide a mechanism to allow for someone in our client’s position to adjust status.

This was a huge victory for our client. The agency must now provide a mechanism that would allow her to obtain lawful permanent resident status.

Scott Bratton Partner Margaret Wong & Associates Co., LPA 3150 Chester Avenue Cleveland, Ohio 44114 (216) 566-9908

Head of Litigation and Removal Department Ohio Super Lawyer and Best Lawyers in America Adjunct Faculty at Cleveland-Marshall College of Law(Back to Top)

Woman's Deportation Results in Precedent-Setting Case, and Eventually, Her Green Card

When you’re foreign born without permanent residency, and the Department of Homeland Security holds your passport, and then asks you to stop by for a visit, don’t go alone.

Our client hired us in early 2007 with just that scenario. Mrs. M and her husband had gradually built a successful restaurant business in the US; Mr. M was a United States Citizen, but Mrs. M was without legal residency since her “entry without inspection” in 1997.

The Federal government initiated proceedings against her in 2004, and served her with a notice to appear. However, Mrs. M did not receive copy of the hearing notice. When she didn’t appear at the hearing, the immigration judge (IJ) “issued an order of removal in absentia.” That’s when Mrs. M hired us.

Our federal litigation expert, firm partner Scott E. Bratton, took lead on the case. We filed an EOIR-26 Notice of Appeal (filed when appealing a decision by an immigration judge) and EOIR-27 Notice of Entry with the Board of Immigration Appeals (BIA) in April 2007.

Our client was ordered to appear in August 2007 at Immigration and Customs Enforcement (ICE) office showing she was preparing for deportation to occur in September 2007. We advised she show she was ready for departure, which she did. However, we also filed a Motion for Stay to the BIA, and received a receipt that they had received the Motion. We then filed a Motion to Expedite the case, given her impending date of deportation.

At the deportation preparation appearance, we asked and were told stays were not granted unless the client was in custody. They told us to call when she was in custody. However, upon her arrest she was immediately deported leaving us no time to act.

That sounds like the end of the story, but it was just the beginning. The BIA denied the appeal because our client had left the country. This is usually done when a person leaves voluntarily, and our client left in the custody of the Federal government. So we spoke with Mr. M, and filed a “Pre-Argument Statement” by February 2008.

The Department of Homeland Security (DHS) filed a motion to dismiss our appeal, and we filed our “Response to the Motion to Dismiss.” We communicated our concerns to the Office of Immigration Litigation (OIL), and they responded favorably. This communication with OIL doesn’t improve our client’s chances, but it makes the forward progress easier. We’re not working with the various government offices – we’re just keeping them informed. When we do this, it always helps, because we’re keeping the government well-informed.

We got our client’s brief submitted by September 2008. In March, 2009, we argued our client’s case before the Sixth Circuit Court of Appeals. In July, 2009, the Sixth Circuit Court of Appeals ruled in favor of our client, [Madrigal v. Holder, 572 F.3d 239 (6th Circuit 2009)], in part stating:

“For the reasons set out above, we GRANT review of the Board's order in this case, VACATE that order, and REMAND the matter to the Board to allow review on the merits of the petitioner's motion to reopen the proceedings in the immigration court.”

The Sixth Circuit Court of Appeals was puzzled first over the odd circumstances where the immigration court said they sent the date of the appearance by mail, but had no proof they had done so, and yet pushed the responsibility for proof on our client. They were secondly puzzled over how an appeal can be denied on grounds the defendant voluntarily departed, and so must not be interested in the appeal, when in fact the defendant had been involuntarily deported, and so is very likely interested in the appeal.

The ruling was another milestone in the process, but, again, was not an end to the process. The case was sent back to the Board of Immigration Appeals, which took another six months to vacate the IJ’s decision, requiring the IJ to review and make a new judgement on the case. In November 2010, we filed a brief and supporting documents to the immigration court.

We also worked to bring our client back from Mexico. She still had a removal order on the record, so if she tried to return to the United States, she’d be detained. The removal order was dependent on the case, which the government attorneys were still disputing. We filed a “reply brief” in February 2011. After pushing and prodding IJ, we got notice of a Master Calendar (MC) hearing, to occur in October 2011. At the MC, we got an extension to file the I-146 (which had changed to an I-210) which was the “Voluntary Departure and Verification of Departure” form, which required our Client to travel to the US Embassy in Mexico, and sign it there.

There were many other forms and fees to file: the I-824, Application for Action on an Approved Application or Petition; the I-130, Petition for Alien Relative (on behalf of our client’s USC husband); the IV AOS Fee made to the NVC (Immigrant Visa Affidavit of Support made to the National Visa Center); the I-601, Application for Waiver of Grounds of Inadmissibility. All forms were approved.

Finally in July 2014, our client was asked to visit the US Consulate in Mexico for an immigration interview, in August 2014, almost seven years to the date she had been deported. Not long after that interview, our client was permitted entrance to the USA, and by early 2015, she had her permanent resident card, the Green Card. (Back to Top)

Try and Try Again: 9th Circuit Court of Appeals Permits Motion to Reopen

Our client came to us after she was order deported for failing to appear at her hearing. Although her attorney showed up in Court, there was some confusion about whether she had to appear due to a pending motion for administrative closure. When she did not appear, the Immigration Judge issued an in absentia order of removal. We filed a motion to reopen based on extraordinary circumstances for failing to appear. The Immigration Judge and Board of Immigration Appeals denied the motion to reopen. We then filed a petition for review with the Ninth Circuit Court of Appeals. After filing a detailed brief outlining the reasons that the Judge’s decision was inconsistent with Ninth Circuit law on the issue, the case was remanded to the Board to further consider our arguments. In September 2014, the Board agreed with our position and granted the motion to reopen. Therefore, our client’s case was reopened and she can now pursue a green card based on a pending I-130 filed by her husband. Scott Bratton handled the case.(Back to Top)

BIA Appeal for 212(k) Waiver

Our client hired us after she was placed in removal proceedings for obtaining her green card improperly.  It was alleged that she engaged in fraud when she entered the United States on an immigrant visa knowing that her husband had passed away.  Although our client should not have been able to enter as a lawful permanent resident at the time, we argued that she did not knowingly commit fraud or make a material misrepresentation.  The case was set for a hearing on the issue.  After hearing testimony and considering our evidence and arguments, the Immigration Judge wrote a lengthy decision ruling that although our client was subject to removal she did not commit fraud or make a material misrepresentation.  The Judge’s finding allowed us to file a 212(k) waiver on our client’s behalf.  This little known waiver was applicable because our client, although inadmissible, was not aware she was inadmissible at the time she entered the US and could not have known through the exercise of due diligence.  The Judge set the case for a hearing on the 212(k) waiver.  This was his first hearing where a 212(k) waiver was requested.  After hearing the testimony, the Judge issued an oral decision denying the waiver request finding among other things that our client was not worthy of an exercise of discretion because she lied at her citizenship interview.  We challenged the Judge’s decision in a lengthy brief filed with the Board of Immigration Appeals.  In June 2014, we received a decision from a three-member panel of the Board of immigration Appeals agreeing with us and sustaining the appeal.  The Board concluded that the 212(k) waiver was warranted.  The impact for our client is that she retains her lawful permanent resident status as of the date it was granted notwithstanding the fact it was granted in error.  Scott Bratton handled the case.(Back to Top)

Federal Court for erroneous decision

Our client hired us to file a lawsuit challenging the denial of his green card application in federal court.  His application was denied by USCIS due to their finding that he was ineligible for adjustment of status.  We promptly filed a lawsuit in federal court under the Administrative Procedure Act (APA) arguing that the denial was legally erroneous.  We also filed a motion for a temporary restraining order and preliminary injunction to have USCIS treat my client’s case as still pending so that he can keep his employment authorization during the lawsuit and so that he did not accrue any unlawful presence while his case was pending in federal court.  The district court granted the temporary restraining order.  At that time, we worked with USCIS to craft an agreement that allows our client to maintain employment authorization and tolls the accrual of any unlawful presence.  Our client’s case is now pending with the district court.  However, due to our filings and negotiations, our client can work and he no longer has to worry about accruing unlawful presence while he pursues his case in federal court.  Thus, he does not have to worry about triggering a 3 or 10 year bar simply because he wants to fight his case.  Scott Bratton is handling the case.(Back to Top)

Never give up.

A client requested asylum from an immigration judge based on his fear of returning to Mexico. In April of 2013, during the course of his immigration proceedings, the client was detained by ICE due to a 2012 DUI conviction. Bond was denied by ICE, the immigration judge and the Board of Immigration Appeals. Shortly after his detention, his asylum case was denied. While appealing the asylum case, we were able to go back to the criminal court and successfully vacate the DUI conviction allowing the client to withdraw his guilty plea. Without the DUI conviction, the client was eligible for Deferred Action for Childhood Arrivals (DACA). However, USCIS will not process DACA applications for applicants who are in immigration custody. Therefore, we continued to fight with the ICE for the release of our client. We submitted evidence of the order granting the motion to vacate the DUI conviction, our client’s DACA eligibility and other equities in his case, which included a newborn U.S. citizen son. Shockingly, ICE continued to detain our client. We appealed the asylum decision to federal court, filed a Stay of Removal so that our client would not be deported, and filed a Writ of Habeas Corpus in federal court arguing that his continued detention was unconstitutional. Finally, in January of 2014, just when he was about to give up all hope, our client was released from immigration custody. He returned home to his U.S. citizen fiancé and was able to hold his newborn son for the first time. Once DACA is approved by USCIS, our client will be able to remain in the U.S. for a renewable two year period despite his removal order and obtain a work permit.(Back to Top)

Green card approved for doctor who wins en banc decision

We were retained by a Doctor who had a pending case with his spouse before the 6th Circuit Court of Appeals.  We were hired to replace his previous lawyer and take over his case before the court.  The appeal was an en banc case before the whole panel of judges in the 6th Circuit Court of Appeals.  Subsequently, we were also hired to file motions for stay of removal with ICE for our client and his wife.  We also filed Deferred Action for Childhood Arrival cases for his two children.  We obtained DACA approval for both of the children.  We also filed EB1-1, I-140 petition, as a person with extraordinary ability in the sciences through his research at a major university in the United States.  We received an RFE and responded to the RFE.  The I-140 petition was approved.  Subsequently we filed for adjustment of status for the whole family based on 245(i).  We were then able to request USCIS to interview the whole family together after their appointment dates were separated.  We attended the interview with the family and discussed the lengthy case history and arguments for eligibility with the immigration officer.  After the interview, the doctor and his family were approved for permanent resident status.(Back to Top)

BIA Appeal Won – Cancellation of Removal Granted

Our client is a 30 year old citizen and national of Mexico.  He has lived in the United States since 1994.  He has two United States citizen children, ages 12 and 9, and a United States citizen wife.  The biological mother of the 12 year old child was incarcerated when the child was young and our client gained full physical custody of the girl.  The mother has not contacted or seen the child since the child was 3 years old.  It was unclear what would happen to the child if our client were removed to Mexico.  The mother does retain some rights and it is unlikely the child would be able to obtain a passport without the mother's involvement, let alone relocate to Mexico with our client.  The child struggles academically and has allergies.  The children do not speak any Spanish.

Our client was placed in removal proceedings in 2008 and found removable for overstaying his visitor visa and making a false claim to citizenship for purposes of obtaining employment.  We filed an EOIR-42B Application for Cancellation of Removal with Immigration Court with supporting evidence.  After hearing testimony from the client and two other witnesses, the Immigration Judge denied the client's application for cancellation of removal finding that our client lacked good moral character and had failed to show exceptional and extremely unusual hardship.  We appealed the Immigration Judge's decision to the Board of Immigration Appeals and won.  The Board found that the 12 year old child would suffer exceptional and extremely unusual hardship if her father were removed to Mexico.  The Board further found that a false claim to citizenship for purposes of obtaining employment does not constitute a sufficient basis for finding that our client lacks good moral character.  This client will now be a permanent resident of the U.S.(Back to Top)

Malaysian immigrant gets motion to reopen approved and subsequent green card

A woman originally from Malaysia retained our firm to adjust status and get her green card. Before coming to our firm, this client had previously been denied a request for asylum and her appeal to the Board of Immigration Appeals had also been denied. She had married a U.S. Citizen and, once her husband's petition for her had been approved, filed a Motion to Reopen her case with the Board of Immigration Appeals. This was also denied, and the client came to our firm to try to reopen her case again and adjust status. Our firm filed another Motion to Reopen the client's case, which was approved. We then filed the client's application to adjust status based on her U.S. Citizen husband. However, due to unexpected circumstances, we were unable to continue with this petition. We continued discussing options with the client, and discovered that the client also had an approved petition from her U.S. Citizen sister. We applied for adjustment of status based on this petition and, after a successful hearing, the client's adjustment of status application was approved. At the time of the client's hearing, her priority date was current, but it then retrogressed meaning that the client had to wait until the priority date was current to receive her green card. Our staff continued to check in with the Department of State and, after a 20 month wait, our client finally received her green card. We look forward to working with this client in a few years to apply for naturalization.(Back to Top)

Ineligible for Asylum? Not So Fast...

We filed an appeal with the Second Circuit Court of Appeals after the BIA found our client was ineligible for asylum.  Our client hired us after the Board's decision.  We filed a brief and a reply brief in the case.  After consideration of the issue, the Second Circuit remanded the case for consideration of the asylum claim under the correct legal standard.(Back to Top)

Motion to Reopen Improperly Denied -- BIA Must Reconsider

Our client hired us to file a petition for review of the denial of a motion to reopen to the 8th Circuit Court of Appeals. Our client contends that his attorney caused him to miss his hearing over 10 years ago and that he exercised reasonable diligence in raising his claim by way of a motion to reopen. In our brief, we argued that the BIA failed to consider all the arguments raised in support of the motion and that the motion to reopen was improperly denied. The petition for review was granted and the case was remanded to the BIA to reconsider its decision in light of our arguments. Scott Bratton handled the 8th Circuit case.(Back to Top)

Marriage Fraud Appeal Discovers New Way of Looking at INA § 237(a)(1)(H)

Our client came to the United States on the basis of marriage to a United States citizen. She was granted conditional residence status. She ultimately was divorced and filed an I-751 petition with USCIS. The petition was denied for her failure to show the marriage was bona fide. She was placed in removal proceedings and charged with marriage fraud. She was also alleged to be subject to removal since her conditional residence had been terminated. She renewed her I-751 with the Immigration Court. The Immigration Judge did not make a finding on the fraud issue but held that our client failed to meet her burden that the marriage was valid. Thus, the I-751 was denied. She then appealed to the BIA. The case was also denied by the BIA. We were then hired on her case. In examining her case, we discovered that she was eligible to file a waiver under INA § 237(a)(1)(H). Although the waiver would appear to only apply to waive a fraud charge, we believed that an argument could be made to extend this to a situation where the ground of removal charged is related to fraud. We filed a motion to reopen our client's case alleging that she should be permitted to file a waiver application under INA § 237(a)(1)(H). We set forth a detailed analysis of how the waiver provision was applicable to our client's case. In December 2011, the Board of Immigration Appeals agreed with our position of the waiver and reopened the case. Scott Bratton handled the case.(Back to Top)

5th Circuit Remands to BIA after Client Given Insufficient Notice to Appear

We were hired after our client's motion to reopen had been denied by the Immigration Judge and the Board of Immigration Appeals. Our client claimed that he did not receive proper notice of his hearing. We filed a petition for review with the Fifth Circuit Court of Appeals. We prepared a detailed brief setting forth the problems with the decision of the Immigration Judge and BIA, including the failure to consider relevant evidence that our client did not receive proper notice of his hearing. We also argued that the law was applied incorrectly. In December 2011, the Fifth Circuit Court of Appeals remanded the case to the Board of Immigration Appeals to consider the arguments raised in our Fifth Circuit brief and to analyze the case under the proper legal standard. Scott Bratton handled the case.(Back to Top)

Judge "Believes" Deception; BIA Finds Client Eligible for & Deserving of Admission

Our client applied for adjustment of status with the Immigration Court. He was statutorily eligible for adjustment based on his marriage to a USC. The Immigration Judge denied his application as a matter of discretion because he believed that he was not being completely truthful at his hearing and had concerns about his prior asylum filing. We were hired and filed an appeal to the Board of Immigration Appeals. We filed an extensive brief explaining why the Judge's decision was wrong. In June 2011, the Board of immigration Appeals issued a decision agreeing with our position and finding that our client was eligible for and deserving of a grant of adjustment of status. Scott Bratton handled the appeal.(Back to Top)

Bia Granted Motion to stay buys our client time 

Our client came to us after he was detained by ICE due to a final order of removal. He claimed that although he received the Notice to Appear, he did not receive the hearing notice of his removal hearing. A review of the Court's file shows that the notice was sent to the proper address. We filed a motion to reopen based on lack of receipt of the hearing notice. The motion was denied by the Immigration Court. We then filed an appeal to the Board of Immigration Appeals. We also filed a stay of removal. During the appeals process, we found out our client was scheduled to be removed the following day. We took immediate action and were able to get a ruling on the stay. The Board granted our motion for stay. We then were able to get our client released from ICE custody. On June 28, 2011, we received good news from the Board of Immigration Appeals. A three member panel of the Board agreed with our position that we established that our client did not receive notice of his hearing. His case was reopened. He will now be able to renew his I-751 petition before the Immigration Judge. Scott Bratton handled the case.(Back to Top)