What to do when adjustment of status is denied

Atty. Emmanuel Samonte Tipon

A non-immigrant lawfully in the United States may adjust his/her status to that of a person admitted for permanent residence pursuant to Section 245 of the Immigration and Nationality Act.

What if the alien applies and receives a notice stating that the application for adjustment of status is denied and that no appeal lies from the denial, although the applicant may renew the application in removal proceedings. Que horror! What should the alien do?

I just came from a meeting with the top brass of U.S. Citizenship and Immigration Service (USCIS) in Honolulu today (March 10). Here are the possible options: (1) do nothing, (2) ask USCIS to issue a Notice to Appear (NTA) before the Immigration Court, or (3) file a new adjustment application. No mention was made of filing a motion to reopen or reconsider. No discussion was made of the details of each option.

You will need an excellent lawyer to evaluate each option and how it could apply to your case.

DO NOTHING

The alien could do nothing and nothing will happen to the alien for the nonce. The USCIS’ priority is going after criminal aliens. Eventually they will come to the alien and place the alien in removal proceedings.

Meanwhile, the alien is in limbo like those without status or TNT (tago ng tago), except that the alien’s whereabouts are known to USCIS. What if the alien hides? The Notice to Appear will be sent to the alien’s residence last known to USCIS. It is as good as if the alien had received the notice. If the alien does not appear at the hearing before the Immigration Court, the Judge will order the alien removed in absentia.

If the alien does nothing, what if the petitioner dies? The petition also dies, subject to certain exceptions.

ASK USCIS TO ISSUE NTA

If the alien goes to USCIS and tells them “Deport me. Issue a Notice to Appear against me.” That is “bearding the lion in his den.” USCIS will generally but not necessarily oblige. They have other priorities. If there are a hundred criminal aliens roaming around, they will go after them first. It is like a traffic cop. He sees you speeding but there is a huge traffic accident ahead of you, with cars burning and ambulances wailing. The cop will not bother with you. There is a lawyer who wrote to USCIS twice to issue an NTA against his client. More than a year has elapsed but USCIS has not acted on his request. The alien did not know about the request until another told him about it.

What if USCIS calls your bluff and issues an NTA on the spot. Depending on the ground for the denial of adjustment, they might even place you in detention.

Before you do this, consult with an excellent attorney who knows how to analyze your case and has the skill to overcome the denial.

In a reported case, an attorney brought his clients to the old INS and asked them to issue an NTA. They granted his wish. At the Immigration Court, the judge told the lawyer that the law granting the relief he was asking was amended by imposing additional requirements that the aliens could not meet. The aliens were ordered deported. The aliens charged the lawyer with ineffective assistance. The court held that ineffective assistance must occur during removal proceedings not before in order that the aliens could avail of such defect.

FILE A NEW ADJUSTMENT PACKAGE

The law does not prohibit the alien from filing a new adjustment package and paying a new filing fee. The alien would undergo the same process as in the first application. The alien would have to overcome the grounds for the denial of the first application for adjustment. For example, if the first adjustment application was denied because of discrepancies in the testimonies of the alien and the spouse, such as the last time they had sexual relations, they should, at the second interview, be able to agree on the date and time. If they fake the date and time, it must be the same.

FILE A MOTION TO REOPEN OR RECONSIDER

The law says there is no appeal from the denial of an adjustment. It does not say the alien cannot file a motion to reopen or reconsider. We have done this a number of times. Be sure the lawyer you hire knows the difference and has the evidence and authorities to support the motion. If the motion is denied, consider any of the three preceding options.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com, http://www.Hawaiimigrationattorney.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)