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  • Detainment - Asylum appeal denied & I130

    I need some help. I met my husband approximately 18 months ago, fell in love, had a baby, and married him this past Nov. I am a USC and he has been in the US since 1987 coming here on a student visa. His father was killed by his country's govt in 1982; my husband was tortured before coming here, but he did not file asylum right away as he believed the govt ruler would change; the govt did not change, and they killed his mother in 1992, so my husband filed for asylum. His claim was denied in 1997 and he appealed to the BIA. Meanwhile, my husband has a brother that is a USC and he filed an I130 in 2001 which has not yet been processed (they are still working on 1999 cases, it's been over 900 days for this so far – whatever happened to due process in this country anyway???). The BIA appeal came back denied this past Oct/Nov, and we immediately went to see his lawyer. We were not satisfied with his work, so we hired another lawyer who said we needed to file an appeal to the 8th circuit, a motion to stay, and the I130. As far as we knew all the papers were filed appropriately. However, a month later immigration officers pulled up in a car behind him and said he had to be taken into custody. The reason given at that time was the appeal was dismissed (to the BIA). I later found out that a notice was sent to my husband's previous address for him to appear in court (we had filled out a change of address with our previous lawyer who claimed he would mail it in and take care of it for us, obviously, he did not). Immigration admits this letter was returned to them undelivered. Once my husband was taken into custody our lawyer filed for a temporary/emergency stay. This was granted about 10 days later, however, he has not been released. Our lawyer claims that he still needs to get the motion to stay approved, and then we can fight to get him out of detainment (with a habeous petition??). Then I come to find out that the lawyer only filed our I130 about a week ago, and now immigration has claimed they never received this – now I'm not sure if our lawyer even filed this. I therefore have the following questions that I am hoping someone can answer for me. Any help would be greatly appreciated:

    1 – Can they legally detain my husband? Even if they issue a motion to stay?
    2 – Is there even a difference between the temporary stay and motion to stay? How long does the motion to stay take to rule upon in the federal courts?
    3 – How long will the appeal take to rule upon in the federal court? (I do not see this in the processing time page). Our lawyer said at least a year, but I'm reading on this discussion board that they are trying to push these through within six months?
    4 – Should I file another I130? What happens if the one the lawyer did shows up and there is a duplicate?
    5 – It is my understanding that he would be able to come back after 10 years, if his appeal is denied. Is this correct, or would he be barred for life? Do I have any rights to get him back as my husband during these 10 years??
    6 – Would it help to get the governors & senators involved? He was well known in the community and I'm wondering if they can speed things up.
    7 – What am I supposed to do in the mean time? My husband was a stay-at-home father while I worked during the day, I can't afford daycare on my salary alone. Should I quit my job or should I ask for a temporary leave? What does anyone think? I feel like my head is barely above the water these days.

    Once again, thanks for your help.

  • #2
    I need some help. I met my husband approximately 18 months ago, fell in love, had a baby, and married him this past Nov. I am a USC and he has been in the US since 1987 coming here on a student visa. His father was killed by his country's govt in 1982; my husband was tortured before coming here, but he did not file asylum right away as he believed the govt ruler would change; the govt did not change, and they killed his mother in 1992, so my husband filed for asylum. His claim was denied in 1997 and he appealed to the BIA. Meanwhile, my husband has a brother that is a USC and he filed an I130 in 2001 which has not yet been processed (they are still working on 1999 cases, it's been over 900 days for this so far – whatever happened to due process in this country anyway???). The BIA appeal came back denied this past Oct/Nov, and we immediately went to see his lawyer. We were not satisfied with his work, so we hired another lawyer who said we needed to file an appeal to the 8th circuit, a motion to stay, and the I130. As far as we knew all the papers were filed appropriately. However, a month later immigration officers pulled up in a car behind him and said he had to be taken into custody. The reason given at that time was the appeal was dismissed (to the BIA). I later found out that a notice was sent to my husband's previous address for him to appear in court (we had filled out a change of address with our previous lawyer who claimed he would mail it in and take care of it for us, obviously, he did not). Immigration admits this letter was returned to them undelivered. Once my husband was taken into custody our lawyer filed for a temporary/emergency stay. This was granted about 10 days later, however, he has not been released. Our lawyer claims that he still needs to get the motion to stay approved, and then we can fight to get him out of detainment (with a habeous petition??). Then I come to find out that the lawyer only filed our I130 about a week ago, and now immigration has claimed they never received this – now I'm not sure if our lawyer even filed this. I therefore have the following questions that I am hoping someone can answer for me. Any help would be greatly appreciated:

    1 – Can they legally detain my husband? Even if they issue a motion to stay?
    2 – Is there even a difference between the temporary stay and motion to stay? How long does the motion to stay take to rule upon in the federal courts?
    3 – How long will the appeal take to rule upon in the federal court? (I do not see this in the processing time page). Our lawyer said at least a year, but I'm reading on this discussion board that they are trying to push these through within six months?
    4 – Should I file another I130? What happens if the one the lawyer did shows up and there is a duplicate?
    5 – It is my understanding that he would be able to come back after 10 years, if his appeal is denied. Is this correct, or would he be barred for life? Do I have any rights to get him back as my husband during these 10 years??
    6 – Would it help to get the governors & senators involved? He was well known in the community and I'm wondering if they can speed things up.
    7 – What am I supposed to do in the mean time? My husband was a stay-at-home father while I worked during the day, I can't afford daycare on my salary alone. Should I quit my job or should I ask for a temporary leave? What does anyone think? I feel like my head is barely above the water these days.

    Once again, thanks for your help.

    Comment


    • #3
      Is there anyone with answers to any of my questions???? I am sitting in limbo with my life here, please help!!!!!!

      Comment


      • #4
        Amlost -

        I'm at work, so I don't have a lot of time to answer your questions, but I am in a similar situation. (please see message titled Asylum Pending & I-130 - last response on Jan 8).

        I'm not a lawyer, but the answer to your first question regarding whether they can detain him is Yes. My husband was granted an emergency stay the day after he was taken into custody and he is still in detention. That was seven months ago.

        Someone else with more legal knowledge probably needs to answer most of the rest of you questions, but I can tell you what our experience has been regarding the Petition for Review that we filed with the 11th Circuit Court of Appeals. It was filed seven months ago and the briefs still have not been filed on the case. I don't believe that the briefs have even been requested yet. So, I don't think that you can expect any quick resolution thru the federal courts. But obviously, the time frame will be different in the different circuits.

        And as far as your questions regarding governors and senators is concerned, my experience has been that they have been unable to help. I have clients who are well connected politically who have pleaded with both Senators and Congressmen to help us, and while they have listen to our story, they all say that there is nothing they can do.

        WB

        Comment


        • #5
          I will try to answer your all questions;

          Answer;
          !: Yes ; because motion to stay is not granted yet. once the stay is granted he will be released.
          2: both are different; motion to stay means you are asking for stay period but temporary stay means you are asking to stay temporary which can be taken off when your work/claim is finished For example if you have any case pending, in process you want to wait for outcome and if favours you you will take action id disfavoured you will leave.

          3: depends upon the courts, the whole process is;
          appeal to be filed then court will issue the briefing schedule, then your attorney will write the brief, then INS will wrte their brief and then your attorney will write the counter brief and then if not opposed , court will issue the decision, in between if there are any work load either your attorney's side or INS attorney's side they can ask to extend the brief fileing period by 15 days or month, (Normal time for filing brief is 30 days).

          You can asume more then 8 months total time period.

          4: you are allowed to file another I130 but why you want to file another?

          5: his case was denied. if BIA just denied his appeal without any extension of departure time then, date will be revert back and yse he has 10 years bar, the bar only kicks in if he leave the country. he can come back after 10 years from the departure date, but still he has to get permission to get in in the form of waiver.
          Yes by filing waiver 601 and 212 he wiull be able to come back sooner, you should be very carefull to judge these waivers first of all the date of judgement from IJ is crucial if his case was decided before april 1st1997, the hardship standard is different.( another whole new topic)
          6: No it won't help. case is already decided. I will write you what can help in your case write your email.
          7; quitting your job will not help. it will put you in debts and if you appeal in cercuit court ,you should have $$$$$$ and don't expect much.
          I can write one suggestion here, try contacting INS counsel, explain your hardship, take your tax return and I-130 copy, give them some good justification for joint motion and then if they agree to join the motion case can be opend and he can adjust his status in EOIR COURT.
          Its a discussion, not a legal advise..

          Comment


          • #6
            Mohan -

            We were told by our attorneys that the granting of the stay would not guarantee that he would be released from custody. We have been thru one custody review (at 90 days) that was denied and we have requested an additional custody review now that he has been in custody for more than 180 days.

            Is our case difference since the Stay was issued by the BIA and not the federal court?

            WB

            Comment


            • #7
              your attorney is filing temp stay , and alien is in flight risk. the grant period might have expired while in custody.
              Its a discussion, not a legal advise..

              Comment


              • #8
                Mohan -

                Thanks for the clarification. I see now.

                WB

                Comment


                • #9
                  Thank you for your answers, they are much appreciated. Per your request, my email is caylerae@hotmail.com. Thanks again.

                  Comment


                  • #10
                    Hello
                    Some answers to your questions.
                    1. An appeal from a final order of deportation entered by the BIA must be filed within 30 days of that order unless a motion for reconsideration was filed before the BIA
                    2. An appeal timely filed before the 8th Cir can be filed with a motion for stay of deportation pending the determination of the appeal.
                    3. If an appeal is pending before the 8 th circuit, your counsel can file a motion to reopen with the BIA asking that a change in circumstance( in this case an 1-130 ) filed by you a USC spouse.
                    4. An applicant is entitled to 1 motion to reopen , so use it carefully.
                    5. If your counsel was ineffective during this proceedings, e.g lied to you about filing petitions, proceed with a grievance before the Bar Association,. this will allow you raise a 6th amendment argument of ineffective counsel on appeal.
                    if you have any other questions, you can reach me at oklaw1@netzero.com
                    Take care and wish you the best

                    Comment


                    • #11
                      My husband's full motion to stay with the 8th Circuit was denied. Does anyone know what legal remedies are left for us? Does the appeal with the 8th Circuit still get ruled upon? How long does it take INS to get his travelling documents together (he's from Cameroon)? Any info is greatly appreciated.

                      Comment


                      • #12
                        honestly, your best choice is for him to voluntary leave (go to mexico or something) and immigrate to UK or Canada with you. In 10 years, he can file legally to come back.

                        Back in 97 his legal options were denied, and he was told to leave. He didn't. So there's no chocie but to hold him, cuz there's no proof he'll leave. Just file more paperwork, which'll just get denied cuz he's got a removal order.

                        Being married to someone for 18 months or having a kid doesn't grant you any benefits unfortunately. Otherwise every illegal would immediately start poppin' out children and getting married if they knew it'd save them.

                        If it was truly asylum, and fear of persectuion -- he would've ran to the first country closest to him or any country that'd take him. If you're running for your life, doesn't matter where u go. Most asylum pleas are rejected cuz they're just hidden "i want to live here cuz this country is better" applications.

                        -= nav =-

                        Comment


                        • #13
                          We have just sent in the paperwork to my husbands lawyer for voluntary removal. The voluntary removal information seemed very confusing to both of us. Included with the voluntary removal information, is info. about Political Asylum case, and the fact that our I-130 is pending). From what my husbands lawyer said, voluntary removal means that you can leave and come back without a 10 year ban, etc. being issued. You go either to Canada, etc. where they have you go, and file the paperwork with a consulate, but there is no ban with voluntary removal. Voluntary removal and deportation are two different things. If being deported there would be a ban, but with voluntary removal there isn't one.

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