Don’t go Alone!
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.
Not the end of the story
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 , 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.
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