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Thread: voluntary departure

  1. #1
    Guest
    I'm a USC married to an Algerian and we have a 5-yr old son. My husband and I got married in 1996 and I filed to petition him the same year. That's when we found out that he has exclusion order in absentia since 1994. We filed a motion to reopen but has been denied twice. In April 2001, we finally got approved for I-130. We filed I-485 along with work permit form in November 2001. My husband went for fingerprinting in May 2002. He still doesn't have a work permit. Now, we have an interview schedule for I-485 in 3 weeks. We have called around with different lawyers and they all said that he will be detained that day for who knows how long, which we already know. (By the way, we had a lawyer then until the beginning of this year. Not anymore. Long story).

    My husband is willing to go home before the scheduled interview. Does anybody know if there's anything special we need to do for voluntary departure? Do we need to see an IJ or how do we let INS know that he will leave or has left? What are the next steps to get him back here?

    We really appreciate any information that would be helpful.

  2. #2
    Guest
    I'm a USC married to an Algerian and we have a 5-yr old son. My husband and I got married in 1996 and I filed to petition him the same year. That's when we found out that he has exclusion order in absentia since 1994. We filed a motion to reopen but has been denied twice. In April 2001, we finally got approved for I-130. We filed I-485 along with work permit form in November 2001. My husband went for fingerprinting in May 2002. He still doesn't have a work permit. Now, we have an interview schedule for I-485 in 3 weeks. We have called around with different lawyers and they all said that he will be detained that day for who knows how long, which we already know. (By the way, we had a lawyer then until the beginning of this year. Not anymore. Long story).

    My husband is willing to go home before the scheduled interview. Does anybody know if there's anything special we need to do for voluntary departure? Do we need to see an IJ or how do we let INS know that he will leave or has left? What are the next steps to get him back here?

    We really appreciate any information that would be helpful.

  3. #3
    if that true what you wrote, your husband will be detained and deported.he has outstanding deportation order.if he go back before interview then he will be called self deported and he will still have Bar of 3-10 years.
    IU-130 approval is only prove that marriage is bonafide he is eligible to get immigrant visa but other terms apply.( he should not have any barand he should be admissible).
    you cannot see the judge.judges are not walk-in.
    in your case you have to go thru the motion to reopen the same case of deportation of absentia, if judge agrees to open the case then he can adjust his status.( there are other technical terms has to follow to open the case , for example; motion should be within 90 days of final admistrative order, or Good excuse with evidence why he cannot appear of final hearing.)
    If judge deny the request for motion then you can appealto BIA , Or ask servise to join the motion.
    If the leave then he will have BAr and he willneed the waiver I-212 And I-601 waiver to get in Back. which is very hard to get.the most difficult papers to get from Bcis.
    Its a discussion, not a legal advise..

  4. #4
    Guest
    Mohan, thx for the info. Maybe u (or anybody) can help me clarify some things that our ex-lawyer didn't explain or maybe he did and I just didn't take good notes back then.

    Anyway, when my husband was ordered exclusion in absentia in Jan 95, there was an appeal that was dismissed in Jun 95 by the BIA. Is this appeal in 95 considered motion to reopen and it was denied? When our lawyer filed for motion to reopen in 9/27/96 with the BIA, we were denied because I130 was not approved yet. He wanted to file the motion to reopen before the deadline 9/30/96 and since we just got married and applied for petition in 8/96 there was nothing to support the motion. So it was denied on 10/96. He sent a supplement record to the motion, stating to delay the action on the motion until I130 was approved and that there was a backlog in I130 approval with the Service which was not our fault. In 10/97, there was a letter that came from BIA and it said, "INS opposes the motion on multiple grounds, including lack of jurisdiction over the underlying request for relief and failure to present a prima facie case. Motion will be denied."
    So, were we denied three times or two times on this motion? How do we find out? Is there a number we can call to check up on this? We were told that u can only apply for MTR 2 times, is this correct? So if we were denied 2 times, what else can we do? Does the HR440 will apply to us?
    We also paid the $1000 fee for the 245(i) before the deadline. Do u know if this even applies to our case? If it does, how so?

    FYI...my husband has no criminal record whatsoever. Unless INS consider unlawful entry to US and missing his hearing date a crime? I just don't know how INS works and thinks. Since we don't have a lawyer, my husband has been calling around about this whole mess and of course, each one of them has different answers.

    P.S.
    We also have a letter from a psychologist who made an assessment of the impact (extreme hardship) it would cause/affect our family if my husband is locked up or deported. Would this help?

  5. #5
    it looks to me that your attorney MTR the same case which was dismissed in June95 by BIA. YEs this was consider motion to reopen. only one motion is allowed and it also time bounded.
    your attorney filed second motion to reopen either he asked for open the case base on the same ground and add the additional information that he is married to USC( in this case attorney might ask motion to reconsider) Or he file other motion( second) based on marriage) . this will be denied because I-130 is not approved OR he might not file the approvable I-130 copies attached. INS oppose the MTR because , INS dont have the Jurisdiction over this case. Case is with court and INS lost the jurisdiction, your Attorney should have known that.
    In Your case, INS will not adjust the status but court will as Court only have the jurisdiction, on the other hand, for your I-130 only INS have the jurisdiction to approve or deny the I-130, court doesn't have jurisdiction over I-130.
    FROM THE BIA the denial came in your case (second reason)because your husband failed to show the primafacieblity.
    there are three main factor to reopen the case.
    first. it should be timely under 8 cfr.
    second You should have proof for certain evidence/information was not previously available Or new evidence occur/change is condition.
    third is primafaciblity.
    I guess none is met.
    Only Filing FOIA request will gets you to your file but it will take more then 6 months.
    under245i He can be grandfather if you file approvable visa petition(i-130), and other condition met.
    He may not qualify for 245I if he entered inspected and married to USC. He might adjust under 245a.
    HR 440 is not become a Law yet so i can't define.
    At Last Only one Motion is Allowed and One Motion to reconsider.
    IF he leave now he will not be allowed back to enter. Bar will kick in.
    Its a discussion, not a legal advise..

  6. #6
    Guest
    Thx again Mohan for clarifying these things out. So now we have an I485 interview on the 22nd and we don't even have a lawyer. To us, this seems like a setup to lock him up. We would like to request to reschedule until we get another lawyer or save our money and just figure out the best we can what our next steps should be. Has anybody heard if a request for rescheduling for I485 interview has been denied? Our reason was our lawyer has a suspended license and we've been trying to get a new lawyer and has not been successful. Does anybody know if this is a valid reason to request for reschedule?
    Mohan or anybody, in the meantime, can we apply for the waivers I212 and/or I601 while we are waiting for 485 interview or are we just sitting duck(s).
    Thx in advance for any related information anybody can give.

  7. #7
    Guest
    Sammy, check it out and any input would really be helpful. Thanks in advance.

  8. #8
    you can ask for reschedule the interview. Waiver is Only be filed if asked.Service has to ask you for the waiver.
    Its a discussion, not a legal advise..

  9. #9
    Guest
    jamesel:

    I've reviewed and analyzed yr whole thread very carefully and concluded that Mohan's answer is correct. However, let me summarize it very briefly for yr better understanding.

    Your husband will be detained [100%] if he go to interview on his I-485, because he has outstanding deportation order against him. And, then you [or anybody] won't know how long he will be staying as detained. First of all, you need to go to local INS office in person if it's close by, and should ask to rearrange the interview for some another day. Write a request-letter in very clarly about the reasoning of doing so, but give only the medical reason instead of any other, otherwise they might not postpone your interview date. Take two copies of that letter with you, one for them and other for you, but make sure to take receipt stamp on your one, so that his case won't be closed, as well he can have solid proof of his request. This will buy him couple of months to decide what he wants to do. I won't advise for certified mail in this kind of situation since certified mail doesn't prove what document is inside.

    You should know that you will be spending lots of money on lawyers because this case will be in legal battle, so it's important to arrange enough money because you will need it, either to bail him out if he is detained or for attorneys'fee. No attorney will do a free job on this kind of mess, because it requires lots of legal research, hard work and time, and still there won't be any guarantee for succuss.

    As you know that I-130 is only a relationship petition wherein INS job is just to determine the legitimacy of the relationship, that is. And, it never guarantees for green card, instead it just gives a basis for applying for a green card, so it's approval means nothing. Once, immigration court gets involved in someone's case, then INS lacks its jurisdiction on that person's case for green card application, and only court can decide the green card application. You can not go to immigration judge or court without being in deportation proceeding first and it has to be thru court date wherein both parties [yr husband and INS] need to be present to prove their claims. Being honest, your husband has zero chance in reopening his motion on his previous deportation order because of various reasons and I just don't wanna spend my and your time in elabroating those reasons, because it doesn't matter now, instead you should be focused on how to deal/handle his green card situation.

    Now, he has only two options-[1] to adjust his status thru immigration judge, [2] to get immigrant visa from consulate. If he is detained here, then he will be presented in front of immigration judge wherein he needs to prove why he should not be deported specifically when he has ignored judge's deportation order previously. Believe me, he has zero chance over here because courts have zero tolerance policy these days on ignoring their previous orders. If you'll read courts' cases similiar to your husband, then you will find that someone hardly gets approved, otherwise all get denial. You will be spending thousands of dollars, yr energy, time for nothing and will endure pshyological distress in yr social life. However, if he can ask for a voluntary departure from immigration judge, but I doubt it that judge will grant it in his case by keeping in mind about all that long violation of court order. And, then he would be subjected to a bar for 5-10 yrs.

    The best option for him to leave now without the involvement of court, wherein he will definately be barred for 10 yrs, but he has chance to get waiver at least, even though it is very hard. If you can creat a situation for an extreme and unsual hardship for you and for yr son in the absence of yr husband, then his chances to get waiver are pretty high, otherwise he has no chance to come here. Just seeing the pychologist is not enough, because anybody can go to them by saying that they have stress because their spouse is not with them. It doesn't fall in the category of "unusual and extreme hardship" standard. He will need two waiver- I-601 & I-212. Both are identical but for different grounds of ineligibilities. You should be ready to prepare for these waivers, because those are the only hope for him, and you should not take it so lightly for granted. There is whole kind of stuff/evidences you need in order to get approval on these waivers. I can advise you in detail, but not now, instead first you need to take care this postponing of his interview. I just want you to know that getting the approval on these waivers are extremely hard, but not impossible. As long you have strong determination and will power, you can succeed. Best of all.

  10. #10
    Guest
    Thx a lot, Sammy/Mohan, for the info. It was not an easy case once we found out he has exclusion. Our ex-lawyer didn't do a good job working on it either. We actually filled out I212 along with the fee back in 1998, and when I picked up our file from our ex-lawyer, the I212 and check were in the file. He didn't send/file it. I don't know if it would have made any difference if we filed I212 back then.

    As far as rescheduling/postponing the I485 interview, the Bar Assn sent us copy of the Order of Suspension along with counts of complaints/grievances/etc. Can we use this as proof that we don't have a lawyer and in the process of getting a new lawyer?
    Just a little background. In Jan 2003, our ex-lawyer sent us a letter stating that he is "going through a licensing process at the WSBA and...have raised the issue of whether my health allows me to continue to practice law". He advised that we "MUST get new counsel". We've been looking around for new lawyer and has not been successful (hard case). In May 2003, he sent us and INS a certified letter stating that he didn't want to represent us anymore. (This was because my husband got so upset at his office when they were taking too long to give our file back plus they wanted us to pay them for our file, which was so ridiculous. This is our file why should we pay for our own file).
    Anyway, a couple of months later, we got the letter for I485 interview. Do u think we can still use what the Bar Assn has sent us?
    If we use it and got approved to reschedule, that's great. If not, then I was going to show up on the original interview date and let interviewer know that my husband decided to go home instead and maybe bring a notorized letter from my husband stating his intent. Would he be allowed to go on his own or do they want to lock him up first then deport him? If they let him go, do we need any forms (or letter) from INS that needed to be filled out?

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