I-765 while on Deportation/Removal Hearing

[brownskinned 5]

I read all of the previous responses and are . . . uhhh . . . surprised.

As a former K-1, your friend has no way to adjust status to resident, not even based on VAWA. Thus, and given the fact that she is in deportation proceedings, VD is the smartest thing to do. This can be done at the immigration hearing by asking the judge for permission to depart voluntarily, or by simply departing, and then by having the attorney provide evidence to this fact to the court at or before the hearing.

After she left, it is unlikely that the court would order her deported in absentia. No deportation, no bar, no I-212 waiver needed. If she overstayed, and given the 90-day validity of her initial I-90 and the second marriage it's almost a given that she overstayed for at least 180 days, she'd still have triggered the 3 or even 10-year bar, so an I-601 waiver would be needed.

Does she qualify for EAD? Of course not. Right now she is just waiting for a judge to sign her deportation order and have her escorted in handcuffs to first an detainment center, then the airport. She does not qualify for anything, and after reading the O.P.'s post I'm not sure she understands this to the fullest.

HANDCUFFS?? really? is that necessary? So, its not just slim, but 0% chance on winning her case? She did over stay for 1.5 years now, but she won't do VD because shed still get the ban (Its still the same as going through the case and getting deported).

[belinda63 2,981]

The difference is if she desires to return after a deportation it will require an I-212 waiver in addition to the I-601 waiver, which means more money for filing and for the attorney. And as Bob said if she is ordered deported most likely she will be taken into custody at that time, maybe she will be able to post a bond maybe not, if not she will sit in a jail somewhere until her flight to her native country.

If she likes the idea of sitting in a jail or being on home incarceration until she is escorted to the airport and place on a plane by ICE then she can continue with this matter.

The sooner she accepts her situation the sooner they can begin with the CR-1 to bring her legally to the country.

[LIFE'SJOURNEY 970]

HANDCUFFS?? really? is that necessary? So, its not just slim, but 0% chance on winning her case? She did over stay for 1.5 years now, but she won't do VD because shed still get the ban (Its still the same as going through the case and getting deported).

It's not the samre that is what you'll are not understanding.

[VanessaTony 3,567]

HANDCUFFS?? really? is that necessary? So, its not just slim, but 0% chance on winning her case? She did over stay for 1.5 years now, but she won't do VD because shed still get the ban (Its still the same as going through the case and getting deported).

As Belinda said it's NOT the same. She'll have a ban for overstay, and a ban for deportation. They're both 10 years but BOTH require waivers. She'll need to file two waiver (ban and overstay) and pay the fees associated with each and wait time associated with each.

I personally don't see the point in the hearing... she doesn't have a chance to stay BUT if she wants to go to the hearing then she needs to ask for voluntary departure to at least try and avoid one required waiver.

[Brother Hesekiel 2,235]

In my not so humble opinion, her chance to "win" her case is 0%. She simply has no basis to adjust, the law spells this out explicitly. Thus, even if the judge is super sympathetic to her, I don't see what choice he or she had in not ordering her deported. The very best she can hope for is VD, and if the judge feels that she might want to stay, which she actually wants, a deportation order is actually more likely.

So while there's nothing to win, but so much to lose, I cannot think of any reason to wait this out. She should just ask her attorney on what legal grounds he or she feels she has a chance to remain in the US. I would love to hear the answer to this.

[brownskinned 5]

I looked deeper into her case (which I should have done before)considering all your responses (thank you!)and you are all right. There's no chance she'll be able to win this. (I wonder what her lawyer was thinking!)

www.justice.gov

Cancellation of removal for non-permanent residents may be granted if the alien:

* Has been continuously present for at least 10 years; - no, less then 10.

* Has been a person of good moral character during that time; - yes she is.

* Has not been convicted of an offense that would make him or her removable; and - yes.she has not been convicted.

* Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents. - I'm not sure how to prove that so maybe not.

Well, I guess she really gotta do VD. I'm not sure if she'll listen.

Here I rest my case. Thank you all. You are all being helpful.

[RICARDO4EVA2 194]

She already has a lawyer, and is still here waiting for the hearing (on the removal proceedings)that will be on April. Let's have the immigration judge do his job on that. I was asking for the EAD if she can while waiting. The immigration officer did not tell her anything about it, but just to stay put and do the removal hearing.

trying to save money to go back home..? seeing the EAd during deportation is just crazy.. where is this thought coming from.

[sachinky 464]

Keep us updated on the case, ya?

P.S.: Her lawyer's thinking $$$.

[Boiler 43,718]

CoR was the only thing I could think of, but she needs to be here 10 years as was said.

Which Consulate would she be going through? I would be less concerned about the 212, similar to the 601 and she has to do one anyway. However many Consulates look less favourably on those Deported rather than VD.

Sounds like a few more legal opinions are needed.

[Moomin 292]

"I'm speeding so I might as well have a drink". If she has any plans on returning to be with her husband this is about the time she starts thinking about the smartest move and how it's going to look in the eyes of immigration law and affect her, at a future interview or at POE down the road. I wish your cousin the best.

I looked deeper into her case (which I should have done before)considering all your responses (thank you!)and you are all right. There's no chance she'll be able to win this. (I wonder what her lawyer was thinking!)

www.justice.gov

Cancellation of removal for non-permanent residents may be granted if the alien:

* Has been continuously present for at least 10 years; - no, less then 10.

* Has been a person of good moral character during that time; - yes she is.

* Has not been convicted of an offense that would make him or her removable; and - yes.she has not been convicted.

* Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents. - I'm not sure how to prove that so maybe not.

Well, I guess she really gotta do VD. I'm not sure if she'll listen.

Here I rest my case. Thank you all. You are all being helpful.

[brownskinned 5]

Hello all... For an update, her lawyer asked for an adjournment and asked that they may process AOS and Work Authorization and the judge approved. Praise God! Her papers are now received by USCIS. Hopefully they let her

[Myopia 93]

Hello all... For an update, her lawyer asked for an adjournment and asked that they may process AOS and Work Authorization and the judge approved. Praise God! Her papers are now received by USCIS. Hopefully they let her

Well I guess there goes all those theories.

She was married to her first husband even if he didnt file the AOS for her. There is a case of a K1 entrant who was able to adjust status even though he was married to someone else. I believe it was because he was married to the first petitioner so even though they denied the AOS through his second wife. He was able to AOS based on his first marriage.

[JimVaPhuong 4,863]

Well I guess there goes all those theories.

She was married to her first husband even if he didnt file the AOS for her. There is a case of a K1 entrant who was able to adjust status even though he was married to someone else. I believe it was because he was married to the first petitioner so even though they denied the AOS through his second wife. He was able to AOS based on his first marriage.

In that case the immigrant had been married to the US citizen petitioner for more than two years. It's complicated, but basically the AOS was improperly denied by USCIS because the immigrant couldn't adjust to conditional resident. The immigrant subsequently divorce and remarried, and filed for AOS based on the second marriage. That was correctly denied. They then refiled based on the first marriage. That was approved on appeal because it shouldn't have been denied the first time. The fact that the immigrant had already divorced was irrelevant. The EOIR specifically said it was approvable, even after divorce, because INA 216 didn't apply. INA 216 has to do with conditional residence.

This case doesn't fit that scenario. The immigrant wasn't married to the USC petitioner for more than two years. I suspect the judge is giving her a shot at her VAWA petition. When that's denied she'll get another chance to visit with the judge. He certainly isn't giving her a chance to adjust based on the second marriage because that's clearly not approvable.

[Bobby+Umit 161]

To bad she didn't apply for VAWA after the abuse, but before marriage - she would of been covered from the initial K-1 petition. (yeah, VAWA covers "Dating Violence" if she was in the US when the violence occured - my read of VAWA gives her rights.)

If granted - she would be able to AOS herself, even without marriage to the K-1 petitioner.

Then she would of been free to marry the 2nd person.

With that said - she could still file for VAWA - which appears to be happening....

(source)

Edited May 5, 2011 by Bobby+Umit

[JimVaPhuong 4,863]

To bad she didn't apply for VAWA after the abuse, but before marriage - she would of been covered from the initial K-1 petition. (yeah, VAWA covers "Dating Violence" if she was in the US when the violence occured - my read of VAWA gives her rights.)

If granted - she would be able to AOS herself, even without marriage to the K-1 petitioner.

Then she would of been free to marry the 2nd person.

With that said - she could still file for VAWA - which appears to be happening....

(source)

Under VAWA, victims of dating violence can avail themselves of government funded programs for protection, health care, and other benefits. However, VAWA does not establish any path to immigrate for victims of dating violence. In fact, the bulk of the VAWA act is not related to immigration. Adjustment of status through a VAWA claim is only available to spouses, children, and parents of US citizens and LPR's.