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Asylum Pending & I-130 (Please help)

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  • WB
    replied
    Veci -

    Let me try to answer your questions. You have two separate things going right now.

    1. Your husband has an asylum appeal pending with the BIA. The briefs are all filed and so now you just need to wait for the BIA to rule on the appeal. As to how long that might take, I don't know.

    2. You are also trying to adjust your husband's status based on your marriage. If your I-130 is approved by the USCIS and an immigration judge grants your husband the adjustment of status, then he doesn't need to be granted political asylum. The Motion to Remand is a motion filed with the BIA to send your case back to the IJ in order for the IJ to determine whether your husband can adjust status based on your marriage.

    The asylum appeal and the AOS are two separate things.

    Ignore anything I have said about the waiver of the foreign residence requirement...it doesn't apply to your situation. Does this make sense now?

    WB

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  • veci
    replied
    Can anyone please answer these questions?

    We filed my husbands political case
    We then had to file his brief, and immigration filed a brief.
    As of now our attorney has sent us a letter. The briefs have been filed, and immigration has responded opposing my husbands appeal.

    Can anyone please tell me what the next step is? We have contacted our lawyer, but were not able to speak with him today.

    Our I-130 is still pending, and we are going on 6 months since we filed it.

    If anyone could help with these questions I would appreciate it.

    Thanks
    Veci

    Leave a comment:


  • veci
    replied
    WB,
    Thanks for your response, but I still am I little confused. I understand that you are telling me to file the Motion to Remand and that it has to do with our AOS case, which means Adjustment of Status. What exactly does the Adjustment of Status do? Is it to adjust the status of my husband as a resident? How will this help us? I also do not know what the waiver of the foreign residency requirement is and how it applies to us. Right now my husbands Appeal is still pending, and we are waiting to hear anything with what we have filed with the I-130. Can you be more clear how this has helped you?

    Veci

    Veci -

    The Motion to Remand has to do with your AOS case based on your marriage. It is separate from the asylum issue. Our attorney filed the Motion to Remand for us. That is the motion that was denied because of the INS claim that my husband didn't have a waiver of the foreign residency requirement.

    Simply put, the Motion to Remand is a request to the BIA to send your AOS case before an immigration judge. You will still have the asylum appeal pending. Two separate issues.

    WB

    Leave a comment:


  • WB
    replied
    Veci -

    The Motion to Remand has to do with your AOS case based on your marriage. It is separate from the asylum issue. Our attorney filed the Motion to Remand for us. That is the motion that was denied because of the INS claim that my husband didn't have a waiver of the foreign residency requirement.

    Simply put, the Motion to Remand is a request to the BIA to send your AOS case before an immigration judge. You will still have the asylum appeal pending. Two separate issues.

    WB

    Leave a comment:


  • veci
    replied
    tld,
    I'm sorry, I hate to appear so ignorant, but I don't understand what the "Motion to Remand" is. I am not so knowledgeable about Immigration information. The appeal was filed timely. Can you tell me how this would help us?

    So your saying that if a Motion to Remand is granted, then it goes back to the court where the Appeal was heard? I thought this happens anyway?

    Could you be a little more specific about a Motion to Remand is?

    Thanks,
    Veci

    Leave a comment:


  • tld
    replied
    Have your attorney file a Motion to Remand to the Immigration Court, for the purpose of adjustment of status. There is caselaw that allows this even if your I130 is unadjudicated, as long as your appeal was filed timely. The Motion to Remand is filed with the Board of Immigration Appeals. If this is granted, then your case if sent back to the Immigration Court that heard the asylum claim.

    Leave a comment:


  • veci
    replied
    I am just keeping this topic going... Thanks

    Leave a comment:


  • WB
    replied
    Veci -

    The fact that the BIA issued a stay of removal did not change the fact that my husband's removal order is administratively final. The fact that the I-130 was approved does nothing to change the fact that the removal order is administratively final. Once the removal order is final, there is a mandatory 90-day detention. The only thing that will change the status of the removal order is if the BIA grants our motion to remand. Then the removal order will no longer be final.

    The INS could release my husband on bond if they felt it was appropriate. He really is not a flight risk, nor is he a danger to society, but the INS claims that he is and for those reasons they will continue to detain him for the forseeable future. I suspect that the he is being held primarily because he is an Arab-Muslim. We know of other people with serious criminal histories who were allowed to bond out after 90 days. But they weren't Muslim.

    All we can hope for is a positive decision from the BIA. Based on information that I received from our attorney, it appears that the BIA has been working on the file. They have asked for a retranscription of a portion of his asylum hearing that dealt with the waiver of the foriegn residency requirement. Hopefully we will received some kind of an answer soon.

    WB

    Leave a comment:


  • veci
    replied
    WB,
    I'm sorry that I seem so confused, but I still don't seem to understand why your husband is being detained? You say that he has not been sent back home because the BIA granted a stay of removal, and that the stay means that the INS can not deport him until the BIA rules on the motion to reconsider. All that seems to make sense. It makes sense that something was done in order to make it right for your husband not to be deported. But, the fact that he was put into custody, because his appeal was denied, doesn't make sense. Do you understand why I am confused?

    Is the reason that they are keeping your husband, in your belief, because the INS believes he has done something wrong in their eyes with the law? or that he is Arab Muslim? Or is it both? or to you, was he detained because his appeal was denied? That is what I can't make clear. Being put into custody because of an appeal being denied doesn't make sense, when you have an I-130 approved. I understand that the I-130 doesn't help everything, but I don't understand why after his appeal was denied, he was put into jail.

    WB, you do not need to convince me that your husband is a kind, gentle, loving man who would never harm anyone. This is something that you know in your heart, and you don't need to convince anyone. It is just too bad that you and your husband are in this difficult situation.

    I hope that you hear something soon. Thanks so much for all your help.

    Veci

    Leave a comment:


  • WB
    replied
    He has not been sent back home because the BIA granted a stay of removal. The stay means that the INS can not deport him until the after BIA rules on the motion to reconsider.

    And you are right, his detention doesn't make sense. It doesn't have to make sense. The INS has the power to hold him and they have exercised that power. Think of it this way, everyone at the INS is scared to death that they are going to release an Arab-Muslim who is going to do something bad....therefore, the solution is to avoid releasing Arab-Muslims at all costs. Veci, I promise you that my husband is a kind, gentle, loving man who would never harm anyone. He is typical of the vast majority of Arab-Muslims in this country. He is just a victim of the craziness that has now consumed the DOJ.

    WB

    Leave a comment:


  • veci
    replied
    WB,
    That is what I believed you meant by your husband being detained. However, I am sorry, I still don't understand why he is being detained. To me, immigration has no right to have put your husband in jail, if in their eyes he hasn't done anything wrong. I do believe, like you have said, that it is a very strong possibility, that they are keeping your husband in jail because he is Arab Muslim. To me, your husband being detained doesn't make any sense. I understand that you are telling me that under the 1996 immigration act, there is a mandatory 90-day detention when an order of removal becomes final, but I don't understand why your husband, instead of being detained, was not sent back to his country? Was it on the basis of your I-130, and that your interview was successful? And, if your interview was successful, then why was your husband detained? As you see, I am very confused. You also said that your husband is being held because Immigration believes that he is a danger to society. Is this also why he is being detained? I just don't understand how immigration, because your husbands political asylum was denied, detained him. There has to be more to this...

    I still believe that although my husbands political asylum case is similar to yours, that there are also many differences. Of course, we still are waiting for our I-130 to be approved before the I-130, but my husband is not Arab-Muslim, and has not been accused of anything from Immigration. You told me that your husband had trouble with a former wife. I understand that you are telling me that Immigration knows this is not true, however I believe that this, and like you said, that your husband is Arab Muslim could play a very big role in why your case has been so difficult.

    It still is very scary hearing all of this, and I know that you are not trying to scare me..., but it is hard being patient through all of this.

    I do wish you all of the luck. I hope that you will hear something soon, and that this long, painful process will end for you. I also hope that we will hear something soon.

    Thanks for all of your help WB,

    Veci

    Leave a comment:


  • moondin
    replied
    Every muslim in dentetion i've read .. has signed to fly back home. They fly back. Print out a fake canadian b.c. on their computer. Fly to Canada, flush the fake bc, and when they arrive -- immediately apply for asylum. Knowing full well, that even *IF* the asylum claim is rejectd -- canada never deports anybody and just tells you to leave.

    THOUSANDS of arabs have already done this since that SRegistraton was announced. And Canada's too stupid to do anything about it. So all we know, there could be tons of Al Qaeda folks in CAnada now.

    -= nav =-

    Leave a comment:


  • WB
    replied
    Veci -

    When I say that he is being detained, I mean that he is locked up in jail. The first three months he was in Yuba County jail and that is one of the better detention facilities. Unfortunatly, he was moved to Santa Clara County jail (San Jose, CA) in September. That place is a hell hole.

    As to why he is being detain....Under the 1996 immigration act, there is a manditory 90-day detention when an order of removal becomes final. The denial of the asylum appeal was the trigger for the removal order that was issued when the asylum case was originally denied by the IJ to become final. (The removal order was suspended while the appeal was pending) The only reason that he hasn't been removed is because the BIA issued an emergency stay of removal. So, until the BIA rules, the ICE can't send him home. If the BIA rules in our favor, the order of removal will no longer be final and he should be able to bond out of jail while we wait for our hearing before the IJ. If the BIA rules against us, the stay of removal will be lifted and he will be sent back to his home country. While the approval of the I-130 is a positive step, it does not grant the AOS. The IJ must grant the AOS.

    According to the service, he is still being detained (past the 90 days) because he is a flight risk and a danger to society. That isn't true and the ICE knows that. The real reason (in my opinion) that he is still being detained is because he is Arab-Muslim. The service plays real hard ball with some people. They will keep them in custody just to try to "break" them. And a lot of them do break. Many of the guys who have been locked up with my husband just give up and sign their deportation papers. And perhaps they will break my husband. Each day that they hold him is just one more day that we will never get back. On the other hand, it really is impossible for us to live in his country. He is way to westernized to go back home again. And it goes without saying that I will never fit in. So we are trying to be patient...but I am laying the foundation for us to go to Canada under the skilled worker program.

    Veci, I don't want to scare you, but I think that you could end up in a similar situation if the asylum appeal is denied before the I-130 and the AOS is completed. Talk to your attorney. Obviously, I'm no immigration expert. I've had a terrible time getting good information out of our attorneys. In their defense, however, things have been constantly changing since 9/11 and sometimes I don't think that the attorneys have any idea what to expect. Hopefully your I-130 will be processed quickly and the asylum appeal will get held up at the BIA.

    WB

    Leave a comment:


  • veci
    replied
    WB,
    Thanks again for your response.

    I can't believe that you had to wait 38 months for an interview! I also can't believe that your husbands political asylum appeal was denied seven months before the I-130 was finally approved. This is what we are impatiently waiting for (Our 2nd NOA letter to come). However we are worried that like your husbands case, that the political asylum appeal will be denied before that I-130 is approved. It is also my understanding, through my husbands laywer that political asylum cases use to take anywhere from 3-5 years, and that currently they are moving more quickly. Our laywer told us that we should hear something anywhere from 2-6 months. We also don't know what will happen if the political asylum case is denied before the I-130 is approved. It seems that your husband case was a little different than ours in this area. This is what concerns us.

    So, your husband is still being detained? Excuse me for my ignorance, but what does this exactly mean? I don't understand exactly why he is being detained. If his political asylum case was denied, and you also had an I-130 approved, than why is your husband still being detained?

    I think that you should still be hopeful, and I also wish you good luck.

    Veci -

    Leave a comment:


  • WB
    replied
    Veci -

    We actually waited 38 months for our interview! Even our attorneys were surprised that it took that long.

    Yes, my husbands political asylum appeal was denied about seven months before the I-130 was finally approved. The appeal of the political asylum case took almost three years, but my understanding is that things at the BIA have changed since we filed and that your appeal shouldn't take so long. However, our attorney seemed to think that the BIA would rule on our motion to reconsider in about 4 months, and it has been 7 months and still no answer.

    Good luck. Hopefully you can get everything resolved fairly soon. Most days, I don't have a lot of hope regarding our situation. I'm not sure how much longer my husband can deal with being detained. We are seriously considering giving up and trying to go to Canada. All I know is that each day he spends in custody is one more day that we will never get back. It make you start to wonder whether trying to stay in the US is worth it....

    WB

    [This message was edited by WB on December 06, 2003 at 07:21 PM.]

    [This message was edited by WB on December 06, 2003 at 07:22 PM.]

    Leave a comment:

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