Mohan- Please clarify

Can a person, who is in removal proceeding due to over staying his authorized stay and at the same time his appeal is pending in circuit court, file a petition on the basis of marriage to a USC? If yes, what are the steps to do that. Thanks

Can a person, who is in removal proceeding due to over staying his authorized stay and at the same time his appeal is pending in circuit court, file a petition on the basis of marriage to a USC? If yes, what are the steps to do that. Thanks

Yes! He can do that. Procedure is the same I-130 first and then I-485 with supp. if any.
One can file both forms concurrently but I-485 will only be processed after I-130 aproval.
Even he get approval, still he have to open the motion case and adjust his status in the front of the same judge.
Pending motion is also depends upon the circumstances (nature)of the case and timely bared.

Thanks Mohan. I am sorry I forgot to tell u that I have my assylum case pending appeal in circuit court. Do u have an idea how long it take to get decision on sush cases in CC 2? Moreover, please clarify, if u mean by same judge " The judge who heard my assylum case" or the one dealing with my appeal in CC. An early reply will be much appreciated.Thanks again.

You have Political asylum case denied or closed whatever. That case has to open again. and is only possible if the country condition is changes and you have prima facie blity proven. Other way to open this case is on the descretion of INS if service want to join the motion. This case has to open first and then only you will be able to adjust the status.
Yes Same Judge. If the circuit court order to open it they will remand back the case to same IJ and while in peoceedings you will ask to adjust the status there.
The main problem you have is opening the political asylum case. Normally INS denied to open the case if there is not any error in teir part.

Thanks Mohan, I realy appreciate ur expert opinion. Can I dare to ask u an other question please. Brief of my situation is as fol:
a. Assylum denied by IJ, voluntary departure granted.
b. I appealed to BIA. I received BIA denial with volutary departure now.
What u think the best option for me;
1. To appeal in cir court. Itis going to cost too much.
2. To appeal in district court.
3. To apply motion to re-open. However, somebody told me during motion to reopen I will be subject to deportation,whereas,while pendig appeal in courts I WILL not be deportable.
Please offer ur advise for me. Thanks.

Mohan, Pl help.

When BIA denied your Appeal and gave you departure you can still appeal in court, Yes. while appeal is pending INS will not deport you unless until decision made on your appeal.
But the time period while appeal is pending is only good for you if you are applied for AOS.
You better talk to a good lawyer ASAP. Because if you are not under AOS then you have a chance to leave within 30 days ( I guess BIA given you time to leave) otherwise you will not be adjusted.
You have I-140 aprved you can go back and come legally and get adjusted.

Problem is that while your asylum matter is on appeal, INS won't be willing to process AOS, once your appeal is denied, you'll become immeadiately subject to deportation, so you may not even get a chance of applying for AOS.