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Can we file Motion To Reopen at US consulate outside the country.

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  • Can we file Motion To Reopen at US consulate outside the country.

    I violated VD in 1995. Left country in 1992 after trying twice for Joint Motion to Reopen.
    In fact, my Lawyer messed up my second MTR. There were substantial new facts he did not mention in MTR and in Apeal.

    Here are my questions.

    Q) Can I sue him for Errors And Emisssions.

    Q) Can I file Motion to Reopen US consulate.

  • #2
    I violated VD in 1995. Left country in 1992 after trying twice for Joint Motion to Reopen.
    In fact, my Lawyer messed up my second MTR. There were substantial new facts he did not mention in MTR and in Apeal.

    Here are my questions.

    Q) Can I sue him for Errors And Emisssions.

    Q) Can I file Motion to Reopen US consulate.

    Comment


    • #3
      First of all how come you violated Vd in 1992 and left country in 1992?.
      Motion to reopen are timely bounded. motion has to be within 90 days of the Final admisnstrative order entered. Also ther is one one motion is allowed( regardless of where you are fileing, within US or Outside USA),
      Once Motion is file and denied you can appeal the BIA decision by Fileing Motion to reconsider, which is also time bounded Within 309 days, IF that denied and decision is affirm then you can file to circuit court for appeal, Also within 30 day of denial.
      you motion from abroad only be consider if you have some very good excuse.
      You can report you attorney to displinary comitte with the proof.
      Its a discussion, not a legal advise..

      Comment


      • #4
        This IS 8 C.F.R 240

        Motions to Reopen After Departure From United States


        A few commenters recommended that motions to reopen be permitted after departure and that the Department delete the language in § 3.2(d) of the proposed rule providing that motions to reopen or reconsider cannot be made by or on behalf of a person after that person's departure from the United States. These commenters contend that this regulation is no longer valid because IIRIRA substituted former section 106(c) of the Act with new section 242. New section 242 of the Act does not contain the provision of former section 106(c) barring judicial review of a final order of deportation or exclusion if the alien departed the United States after issuance of that order. The commenters assert that if a petition for review of habeas corpus is successful, the petitioner should be lawfully entitled to reopen his or her removal case, even though he or she departed from the United States. They argue that such motions will promote judicial efficiency and economy.


        The Department has decided not to adopt this suggestion and the interim regulations will not be changed. No provision of the new section 242 of the Act supports reversing the long established rule that a motion to reopen or reconsider cannot be made in immigration proceedings by or on behalf of a person after that person's departure from the United States.
        Its a discussion, not a legal advise..

        Comment


        • #5
          I departed in 2002. In fact I meant to ask "Joint Motion to Reopen". What my understanding after reading your respond I should be able to file MTR. As you know there is numerical limit to MTR which and it should be timely. Which I have did file in 1997 and was denied. Subsequently I filed 2 Joint Motions, and both of them got denied.

          Here are my questions?
          a) Should I file Joint MTR at consulate

          Or

          B) I should get 212 approved which I already have and subsequently file i-601 waiver/

          Best Regards

          Comment


          • #6
            Could you please tell us how you got your I-212 Waiver? What are papers you submitted in supporting your case please share with us.

            thanks a lot.

            Comment


            • #7
              I submitted medical records, hospitals bills, doctors notes of my wife treatment, and
              proofs of marraige. I also submitted a personal letter from me explaining my hardships, my wife hardships.

              Another Advice!
              This is only correspondence I did with out involving a lawyer and it worked for me. And whereever I used a lawyer things seems to get lengthy and messy. So far I have used 4 lawyers each one of them was worse than the other.

              Comment


              • #8
                You are already departed in 2002. you have to take waiver route.
                You should know that you are under transition rule when Vd was granted to you so IRRIRA is not apply to you. you can prove hardship to yourself OR USC or both in your case . it will easier to get I-601 approved in transition rule rahter then IRRIRA where only USC hardship is counted.
                You sohuld not do Joint motion to as its already denied and its bounded by numerical limits also.
                I have no Idea why it was denied when service want to joint too and you had change in or new circumstances included. Any way thats doesn't matter at this point.
                Once your I-601 approves you can get Visa and come back in very next day.

                Comment


                • #9
                  another advise.
                  Make sure you attach copy of I212 aproval while filing I601.
                  Good luck

                  Comment


                  • #10
                    Dear Mohan!

                    I violated VD in 95 and stayed illegaly till 2002. And IRRA was effected in 1997. So I did accrue illegal time after 97 for about 4+ years.

                    My understanding is I need i-601 for my illegal stay after IRRRA was effected which is well over 4+ years. Will transition rule still applie to me when I file i-601? If this is the case, then this new fact you are bringing to me is a very good news for me.
                    Because out of 4 lawyers none has mentioned this rule. Can you please tell me where I can find eligibility for transition rule. If INS do honour this fact then we should make this word public as fast we can. I have very stroing feeling 100' of thousands can benefit with this.

                    Comment


                    • #11
                      I forgot to mention that I have approved marraiage petition with priority date of April 1998.

                      Comment


                      • #12
                        You got V departure in 1995 which is Before IRRIRA 1996, this rule was in effect on april 1st 1997. regardless of your overstay you are grandfathered this IRRIRA and you will be treated under Old Law.
                        For I-601 You are eligible to prove hardship to USC as well as To Alien, ( this you will not be allowed in IRRIRA Act of 1996. Another major change is , IRRIRA probihited the Court to have jurisdiction over review of BIA decision, which in your case you r case can be reviewd if you file the appeal with circuit court but I guess time of appeal is already pass by ( 30 Days after denial of Reconsider) ) Sept 1996 and the the date of effect of IRRIRA which is april 1st 1997 Is UNder transition rule), if you got decision prior to that you are under old rule)

                        You can be eligibl for suspension of removal if you are within USA but you already left so it won't apply to you. Check the BIA web site and you will see this link.
                        http://www.usdoj.gov/eoir/press/03/Barahona.htm this is one example which supports my statement.

                        To find out about your eligiblity regarding Transition rules you should see the decisions of circuit courts I will try to put atleast one link for you.

                        http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DEA2D7F81F74610E88256CCD006116F2/$file/0070724.pdf?openelement

                        Read page 6 and page 19 .
                        Page 19 will explain you regarding transition rule adn eligiblity.
                        the above link will give you access to many published decision where you can work your way up. good luck,

                        Comment


                        • #13
                          Mohan, could you explain what the differences are between I-601 waiver and I-212 waiver and how they apply differently? Thanks a lot.

                          Comment


                          • #14
                            I will try to explain the differnce: Mohan-Feel free to correct me if I am wrong.

                            212 is used to apply to reenter after deportation And i601 waiver usually needed to waive 3/10 years bars triggered due to illegal stay in US. Bars can be triggered for other reason e-g crimes, Medical etc.

                            Comment


                            • #15
                              Dear Mohan!

                              Thanks for your Help. I will concentrate on getting 601 approved.
                              If you have helped someone preparing 1-601 similar to my case. Please email me at sam87671@yahoo.com 1-601 draft where you have requested consular using transitional rule when reviewing hardships waiver. I also want to help a friend of mine who lived illegaly in US since 1990 and left US just now and married to US citizen a month ago. He never been visited to court so I think he only needs to file i-601 and probably he is home free.
                              In my understand he definetely falls in transitional rule. Please verify it.

                              My Email address is sam87671@yahoo.com.

                              Comment



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