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Thread: Pending Asylum Case and I-130

  1. #1
    Hoping anyone can answer some questions.
    I have written on the board about this before. My husband has a pending asylum case. We also sent in the I-130 a year ago. At the time, processing of the I-130 was taking between 300-356 days. It has now gone up to 640-670 days.

    My question is if anyone knows what will happen if the Appeal is handled before the I-130. My husbands lawyer has sent paperwork along with the Appeal information to the appropriate area.
    Can my husband be deported if the Appeal is denied before the I-130? We have had two lawyers tell us that it is not a good idea to close the appeal case, even though we have the I-130. Also can the processing times get longer? They have already reached 670 days. This is so crazy! Can someone help with these questions? Thank you.

  2. #2
    Hoping anyone can answer some questions.
    I have written on the board about this before. My husband has a pending asylum case. We also sent in the I-130 a year ago. At the time, processing of the I-130 was taking between 300-356 days. It has now gone up to 640-670 days.

    My question is if anyone knows what will happen if the Appeal is handled before the I-130. My husbands lawyer has sent paperwork along with the Appeal information to the appropriate area.
    Can my husband be deported if the Appeal is denied before the I-130? We have had two lawyers tell us that it is not a good idea to close the appeal case, even though we have the I-130. Also can the processing times get longer? They have already reached 670 days. This is so crazy! Can someone help with these questions? Thank you.

  3. #3
    can't view message on board

  4. #4
    Does anyone have any info about this? I would greatly appreciate it. Thanks

  5. #5
    First off, pending/approved I-130 does not change your hubby's status from illegal to legal. Second, is there ANY chance that the asylum case can be withdrawn before a final decision? That would be your best course of action. I don't understand why lawyers advise against it. If you're a UCS and he withdraws the asylum claim after I-130 is approved you can file the whole adjustment of status package.

    If the appeal is denied a deportation order will be issued. If he's been in the country for over 10 years you can try to argue for the cancellation of removal based on a marriage to USC and a good moral character. Otherwise he most likely will be deported regardless of the approved I-130. Hope for the best but prepare for the worst, sigh.

    If that happens you're in a lengthy haul to bring him back.
    I'm not sure if you can file for a K-3 spousal visa while the I-130 is pending after deportation but if you can that'll be the fastest way to get him back. From the time you file the forms for K-3 to the time of the interview at a consulate/embassy shouldn't be more then 6-10 months.

    But if the I-130 is approved before he's deported you'd have to first file form I-824 to switch to consular processing. This is due to the fact that on the I-130 you specified "adjustment of status while in the U.S." and not "consular processing" as a mean to obtain his permanent residence. Depending on a Service Center the time of approval for the I-824 varies between 8-10 months. But after it's approved it'll take between 4-6 months for the approved I-130 to go through the NVC and a date of his interview at a consular/embassy. That is if you'll be prompt in your correspondence with the NVC.

    Now the fun part.
    Your hubby becomes inadmissible for 5 years after deportation. At the least he'd have to file form I-212 for permission to re-apply for admission requesting Attorney General's consent to let him back in. But. If it has been more then 6 months or over a year after his visa expired he becomes inadmissible for concurrent 3/10 year. The good news is that there's a waiver of inadmissibility (form I-601) to overcome this. The bad news is that this waiver is very hard to get approved because you'd have to demonstrate an *extreme* hardship to you as a USC/LPR if he won't be allowed back in the country. Requirements for an approvable I-212 aren't as harsh. Preparing an approvable I-212/I-601 is a whole other ball game and there're a lot of resources about that on this board.

    And finally.
    When he goes for his visa interview at a consulate/embassy initially he'll be denied his visa and asked to file the waiver(s). If you hit them and hit them hard with the approvable waiver(s) in a few months but no more then a year he'll be back on the American soil!

    P.S. You'd be surprised how many people go through this process. Filing for an asylum as a quick fix of an immigration situation has brought down a lot of heartaches lengthy separations.

  6. #6
    thank you for your concern "sup". First of all I wish to thank you for replying these posts which have relation to Immigration matter and not participating other unrelated onec. I,m not agreed with your answer. no hard feelings. you explained the statue and what will happend afterwords, also how many people goes thru these process everydays. I don't see any solution here, I onle see what have happend. Do u Know why many people have these situations? I can say attorneys fault.
    You are correct I-130 cannot stop deportation.

    First of all its not clear here that if the Asylum case is already denied and then alien filed the appeal. I will take her statement that her case is still pending and answer her post.
    MY ANSWER:

    If Asylum is pending and alien files the approvable Visa petition based on marriage, He can be adjusted in court on hearing date or Laterz. JUrisdiction for adjustment relys with the court whereever Visa petition approval jurisdiction alsways rely with INS, court have to wait for visa petition approval. All the alien had to do is to inform the court formally that he is married and intend to AOS.
    NOW I EXPLAIN WHY IT A BAD IDEA TO WITHDRAW THE ASYLUM CASE:
    it is bad idea to withdraw the case because. on withdrawal Judge will seek the relief available to alien before deny the case OR issue the denied letter. Mostly Voluntary departure comes in picture if alien don't have any crime and other avtivity which can prevent him to get relief.
    BAD PART:
    Once the case is decided. there are two way to adjust. one, alien depart and adjust in Consulate processing. Alien had to get waiver for his overstay in US.
    Second; if he want to adjust here , he has to open his political asylum case again to get in court because only court have jurisdiciton. He has to do motion to reopen for the same case. It is very hard to open same case unless either he have merit the case base, New facts finding etc OR ineffective counsel representation ( LOZADA MOTION, and all three steps to be followed)OR Due process violation by the INS. Yes, INS can reopen its own motion any time but Alien motion is timly bound and numeric limited also. Also Motion can be Discretionary. Even alien met the requirement of relief , Its upto judge if he agrees to open the case or not.
    After the withdrawn, alien will be in limbo and it will be very hard to adjust. Also if the alien case is denied and given V Depart and don't leave he will be bared for 5 years for any adjustment.
    INS counsel oppose these motions very often.
    SOLUTION:
    His asylum case is still pending, he should intend to AOS in court by filing a copy of AOS I-485, and with the Proof af Bonafide marriage, that marriage is entered in good faith, get the another court date so his I-130 will be approved.( Matter of Velarde Pacheco) And get adjusted.

    Wrong decision of withdraw or close these cases are the mistakes from attorneys who don't know what they are doing, mess the Alien Up completely, but it solve the purpose of making money.
    Its a discussion, not a legal advise..

  7. #7
    Mohan, thank you for the information...

    Sup, I understand that I asked for information, and I got it, but you seem to take my message as some kind of joke. I don't know if what you say is true, but your message seems very sarcastic. If worse does come to worse, and my husband does get a deportation order, there will not be any lengthy separation like you mentioned, because I will be going with my husband wherever he goes.

  8. #8
    Mohan,
    I have a couple more questions. One is about what you wrote here:

    SOLUTION:
    His asylum case is still pending, he should intend to AOS in court by filing a copy of AOS I-485, and with the Proof af Bonafide marriage, that marriage is entered in good faith, get the another court date so his I-130 will be approved.( Matter of Velarde Pacheco) And get adjusted.

    My husbands lawyer has sent an appeal brief to the proper area with documents such as marriage certificate, pictures, credit cards, house mortgage statements, bank, etc and receipt of I-130. However, we have not sent I-485. Can we apply for this I-485 with the political asylum case pending, because neither of the lawyers that we have have told us to do so. Do you think this is a good idea.

    Also, my husbands lawyer has spoke to us, and we filled out paperwork for voluntary removal. My husband is of good moral character, and has never committed any crimes, etc.

    I understand that you say that the I-130 can not stop deportation, but do you say that, because things such as crime and things can be involved? because these are things that we are not concerned about. What other things can issue a deportation order? If the appeal is denied, won't the I-130 that we filed a year ago help at all?

    Thanks for your help Mohan.

  9. #9
    I wasn't sarcastic, that's just my style. I do take your situation seriously because I have the very same one.

    Now to the questions. Adjustment of status form I-485 has to have a legal basis for filing. In a marriage based case that basis is an approved petition for alien relative form I-130. In most cases those form are filed and adjudicated concurrently along with some other forms like employment authorization and advanced parole. If you haven't filed them concurrently you have to wait for the I-130 approval before filing I-485.

    I-130 filed/approved will not stop deportation.

    I understand what mohan is saying about going in front of the Immigration Judge and filing for adjustment of status. The problem is that the possible denial and deportation order won't involve your hubby going in front of an IJ. You'll just receive a denial letter with the instructions to depart the country. Mark my words.

    You going with your hubby to his home country will make it much more difficult to prove *extreme* hardship to waive his inadmissibility.

    If you don't appreciate the advice than don't ask for it.

  10. #10
    Let me explain you further more and let me know where His case stand in processing his political asylum.

    Alien ( your husband ) file the application for Asylum. he will be called for Interview with adjucating officer. USCIS officer will decide the asylum case ,if he think alien has credible case he will grant Political asylum if not he will refer his case to court by issuing NTA. BY doing that there are two things occured. one Judge has to decide his case after hearinghis testimony/proofs, TWO: USCIS lost the jurisdiction over his adjustment, If he want to adjust his status, court has to allow his, He cannot file I485 with USCIS. ( USCIS AND EOIR are two different departments)
    I guess he passed this stage of Interview with USCIS officer and and his case is in court. If not let me know where his case stands.
    Now once his case will be in court he will have master clender hearing to prove his case where he has to show is credible evidence of Political asylum which should not be generic but specifically related to him. if its based on torture of one part of the country then he has to prove that why he cannotable to relocate in different part of the same country also. All I,m saying is he has a master hearing in front of immigration Judge.

    Once alien in removal proceedings( which he has)and he married to USC, and visa Petition was filed in his behalf, Regardless of approved visa petition(I130), Alien can ask for relief to adjust his status in court by showing that he is married to USC and visa petition was filed and is approvable + intention of adjucation of aliens status.
    All the bank , mortgage, marriage pictures etc are the proof to
    bonafide marriage and used as exh. that visa petition is approvable( Yes. its only required to show approvable because judge don't have authority to approve Visa petitions)
    Next part is to show the intention of AOS.
    As I explained above AOS jurisdiction will be with Court so Your husband cannot file his I485 with Immigration( USCIS) but to prove to the Immigration court, Youe husband should fill these forms and copy of the form to be submitted in court as intended, NO fees attached. No matter if your husband didnot filed it. This shows intention of AOS, this makes Immigration court to justify a form of relief available to Alien.
    ( your attorney should prepare these package and should not file but supply a copy to court as an intented( in future).
    Reference case of valerde pacheco is similar case .. you can read on EOIR web site)
    Next part; When the aliens case is in court and he cannot prove his credible story of asylum, then court cannot just deny his case, relief will be sorted first. Voluntary departure is a sof relief available to alien who met the other requirement of moral and no criminal record etc. also there is question of waiver of appeal by the both party.

    Next; is not a good Idea to get voluntary departure, because after V departure, there are only two way to get adjusted, ONE you leave within 60 days Or Motion to reopen same political asylum case and if the case is mopen then adjust status in front of same judge who granted V departure.
    IF you leave the country, you still,have to get waiver of over stay which is as hard as 601.who knows if hardship standard are enough or not.

    The first option with Voluntary departure , motion are timely and numeric bounded, also has to pass the merrit of, also discretionary, USCIS counsel mostly oppose the motion etc, another can of worms and some time its very hard to reopen cases. in the meantime aliens voluntary departure time elapses and he will be in bared to any sort of relief too, There are many aspects.
    His Case is already in court and open, why don't adjust right there and not to prolong the process, less spending, fast adjustment. I remember Bushmaster"s case also had similar situation. I know this is right way for you . talk to your attorney for intention, he may be not looking the way I look at the case. Good luck.
    Its a discussion, not a legal advise..

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