Divorce Final After i-751, denied. Motion to re-open denied. No Notice to Appear

[andy808]

First of all, my marriage was real.
I did submitted a lot of affidavits from friends and parents, life insurance policy, bills, joint accoutn pictures, love letters etc.

However my final divorce date was later then the date I file the i750 to waive filing jointly for 8 days so that they denied my case. It was late because of a name typo on the marriage certificate.

In the notice of decision, it stated that "The divorce was final after the filing of the petiont, therefore the petition is denied as a matter of law and the conditional residence status is terminated concurrently. This decision may not be appealed. However, the conditional resident MAY REQUEST a review of this decison beofre an immigration judge pursuant to 8 C.F.R 216.5(f). At that time, the conditional resident may request a continuance of the removal proceedings until the applicant is eligible to file a waiver of the joint filing requirement. Please note that a Notice to Appear before an Immigration Judge will be issued and forwarded to you.

My attorney help me to file a reopen motion and got denied again for the following reason.

it will be dismissed because:
the motion to reconsider does not state reasons for reconsideration supported by pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy, a motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of initial decision the conditional resident does not qualify for a waiver of the joint filing requirement because the divorce was not final at the time the petition was filed. previous denial decision will remain unchanged

My attorney said we will have to wait until the California service center send the case back to our local hawaii immigration office then I will have to do some biometrics to surrender myself. And we will have to go to court.


My question should I just wait as adviced?

Should I re-file the i-751? If yes, can I reference my previous evidence or have to gather all new set of affidivates?

Should I and how do I request a review of the decision before an immigration judge...?

My motion to reopen was denied on dismissed May 6 , 2008 and i still have not received a notice to appear. Is it because I never requested a review appropriately?

[andy808]

The last thing the lawyer filed was a motion to remopen with additional new evidence, to reconsider approvale my i751 petition to remove conditiona filed nunc pro tunc.

Evidence were
-1-751 petition now dated after the divorce is finalized.
- finalized divorce decree dated August 29, 2007

The reason the motin to reopen was dismissed is because the CIS is holding on the point that the law stated that divorce final date must be before the i751 waiver petition date.

Doesn't that seems to you that I have to refile the whole i751?

[andy808]

First of all, I have not gotten the notice to appear until now. it's been 4 months since the motion to reopen was dismissed.

Secondly, the divorce was finaled 9 days after my first petition.

My lawyer was telling me that there is not way to estimate the time for me to recieve the notice to appear because of the high volume of cases and that I am not a high priority to be removed.

However the facts are:
Divorce final date August 29, 2007.
First petition date August 20, 2007.

These condition will never be corrected unless I file a new petition dated today, with divorce final date remind the same August 29, 2007.

Agree?

[4now]

However my final divorce date was later then the date I file the i750 to waive filing jointly for 8 days so that they denied my case. It was late because of a name typo on the marriage certificate.

Hello Andy

Are you saying in this statement that you filed the 751 waiver 8 days before the divorce was final? And that the reason that the divorce decree was delayed was because of type on a marriage certificate? Please clarify .


Did this lawyer file this petition 4u without the decree, or did you do this on your own?


In anyway, terminate your attorney. File the 751 again with fees and the same evidences (that I hope were good ones). write a cover letter explaining that you were previously denied for improper procedure. enclose the letter from uscis. make sure you have proper evidences for review. then wait until adjudication.

Surely this will be cheaper than what you are paying your incompetent attorney. dont you think? Being called for removal proceedings can take up to 3 years in some cases.

How many ways will uscis have to spell it to him that the application was filed before the decree and no misapplication of the law was applied in denying the 751 waiver.. The answer will not change

You may want to tell us what evidences you submitted for us to advise you.


@Davdah


Procedures have not changed. Just being adhered to in light of 911.
OP would have had to have been in front of the IJ (proceedings) for the lawyer to have filed for the continuance until the divorce was final.

[andy808]

You got it mixed up....

1. I NEVER received the NTA.
2. I have already filed the 751 and waiver once.

My original question is whether I should re-file the i751 with waiver.

Are you suggesting that I should wait until I get the NTA, and have a new set of i751 application with support document ready to be presented at court, insteading of mailing it in to file?

What is the reaon that I shouldn't just mail it to the service center now?

[andy808]

Hi 4now,

Conditional Permanent Resident was attained August 29, 2005.
Form i-751 filed Aug 20, 2007.
Request for waiver for join petition Aug, 20, 2007
Divorce finaled was August 29, 2007

It was close to the deadline (90 days before 2 yrs), my lawyer filed the petition without the decree. At the same time, we didn't know there would be a delay until we were notified that there is a mispell of my ex-wife's name on the marriage certification.

he is suppose to be a rather good attorney with 15 years+ experience.

I have submitted the following:
applicant's affidavit,
email between applicant's mother and his ex-wife
love diary written by ex-wife
affidavit of ex-wife attesting to the bona fide marriage
declaration of my father applicant and ex wife married to each other solely to start a family together that their marraige was open.
Same for applicant's mother.
Affidavit from over 10 friends.
Joint tax return
joint checking account statement
life insurance policy with exwife beneficiary
picture at the wedding and trips.
wedding card from jan's friend.

[SonofMichael]

People love drama. Getting a green card through marriage could not possibly be made any easier. Yet these people just go out of their way to make it complicated. I don't know why they intentionally have to fill up their lives with such nonsense. I could not live like that. My life is like a sailboat on a smooth harbor going with the wind.

[andy808]

davdah have suggested that I wait.
4now have suggested that I refile.

Any additional input or agreement after I posted extra info about my evidence and facts?

SOM, I didn't want life to be complicated neither, I'd prefer staying happily ever after with my ex. But that's my life. But anyway, happy birthday.

[4now]

Originally posted by Andy808:
Hi 4now,

Conditional Permanent Resident was attained August 29, 2005.
Form i-751 filed Aug 20, 2007.
Request for waiver for join petition Aug, 20, 2007
Divorce finaled was August 29, 2007

It was close to the deadline (90 days before 2 yrs), my lawyer filed the petition without the decree. At the same time, we didn't know there would be a delay until we were notified that there is a mispell of my ex-wife's name on the marriage certification.

he is suppose to be a rather good attorney with 15 years+ experience.

I have submitted the following:
applicant's affidavit,
email between applicant's mother and his ex-wife
love diary written by ex-wife
affidavit of ex-wife attesting to the bona fide marriage
declaration of my father applicant and ex wife married to each other solely to start a family together that their marraige was open.
Same for applicant's mother.
Affidavit from over 10 friends.
Joint tax return
joint checking account statement
life insurance policy with exwife beneficiary
picture at the wedding and trips.
wedding card from jan's friend.

Hi andy

Obviously, he has not been keeping up with procedures at uscis, or any new memos. He risked your status and your money for a few days. It could have waited. An experienced lawyer with good judgemnet would have know that filing late was not a big deal.
When did you seperate?
When did you file for divorce? Was it a fault divorce?

In regards to your evidences, uscis will be looking for good and strong evidences since your 1st interview for the conditional green card. Your marriage did not make the two year threshold (uscis time) .

How many joint tax returns were submitted?
What about the lease, memberships at video stores, utilities in both names. How many months of bank statements that show that the accounts were joint up to seperation?


What is this statement about an open marriage?


You should also know that waivers are not a slam dunk. factors are how long the marriage lasted and evidences.

Were there any children from the marriage?

[andy808]

When did you seperate?
When did you file for divorce? Was it a fault divorce?

I filed the divorce towards the end of July.
It was a no fault divorce.

1 Joint tax return were submitted only which is the 2005 one.
I have paid for the building management, it was an apartment owned by my ex father.

The last statement I kept for the joint account was Sept, 2005. The account was opened Sep, 2004.

There weren't any children.

the statement from my dad basically stated that he knew how we met and got married.

the affidavit from my ex basically explained that the seperation was caused by financial and personal reasons, such as her family against our marriage and pressure her on the divorce.

[SonofMichael]

Live a happy life. No worries.

Peace.

[andy808]

davdah,
I'm not sure if I understand your correctly. But I don't have the notice to appear yet still...

[4now]

Originally posted by davdah:
Your father married your X-wife and they have an open marriage? Now that is kinky.


Jokes aside. You have the court appearance so you should go in and make your case. Seems like it should go smoothly.

Davdah

you are confused and misleading the poster here.

please reread the thread.

[4now]

Originally posted by Andy808:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">When did you seperate?
When did you file for divorce? Was it a fault divorce?

I filed the divorce towards the end of July.
It was a no fault divorce.

1 Joint tax return were submitted only which is the 2005 one.
I have paid for the building management, it was an apartment owned by my ex father.

The last statement I kept for the joint account was Sept, 2005. The account was opened Sep, 2004.

There weren't any children.

the statement from my dad basically stated that he knew how we met and got married.

the affidavit from my ex basically explained that the seperation was caused by financial and personal reasons, such as her family against our marriage and pressure her on the divorce. </div></BLOCKQUOTE>


Hello andy


You didnt answer me on when did you seperate?
Why only one tax return filed joint?

IMO, you do not have good evidences submitted for uscis criteria since the initial interview. The affadavits seem to be the most plentiful evidences that you submitted. They will not hold that much weight for your case, including your ex wife.

Was there any marriage counseling done?

Cautioning you again. Waivers are not that easy to get approval. You seem to have very weak evidences at this point.

[SonofMichael]

Actually (if I read this confusing post correctly), the affidavit from the wife would be very strong proof of a bonafide marriage (unless he paid her for it). I am just very confused on the time line. Very unclear and confusing.