By Alary E. Piibe
What’s a person to do when they qualify for a green card but USCIS tells them to file it with the wrong agency? One recent client’s case is a prime example of the nightmarish tangle when a person is caught between USCIS and Immigration Court. USCIS refused to take jurisdiction over the case and consider the green card application, stating that the Immigration Court should decide. The procedural maze can be dizzying, and longtime navigational experience untangled the mess.
Most people don’t know that USCIS and Immigration Court are separate agencies, and they do not work together to help you out. One rule states that you must file your green card application with USCIS. Another rule states that you must file your application with the Immigration Court if you have an old court case, but were never deported.
Our client qualified for a green card through marriage, but we knew he had a complicated past. This would affect whether USCIS or the Immigration Court would take the green card application.
A thorough review of his government files (from both USCIS and Immigration Court) revealed that he had been deported in the 1990s. He later returned to the U.S. without permission. ICE fumbled the matter by starting a second court case against him, instead of reopening his old case from the 1990s to deport him again.
The error was discovered and the Immigration Judge terminated the second case, so that ICE could reopen the old court case and deport him again. But then ICE never reopened the old case. This means the client had an old court case and he had been deported.
To determine where to file the green card application, many people would make the mistake and look only at the second case that ICE improperly started. This is what USCIS did. They wrongly thought our client had this old court case and never was deported afterward. However, that second case no longer existed for jurisdictional purposes because the Judge terminated it.
Thus, our client only had one old court case that counted, from the 1990s, and he had been deported afterward. The proper procedure was to file the green card application with USCIS, along with an I-212 waiver to forgive the deportation in the 1990s. These waivers are complex and aren’t guaranteed to be granted, but we prepared a strong case for him.
Although we filed a supporting legal argument to explain why the case belonged with USCIS, it refused to take the case. It insisted that we should file the application with the Immigration Court. We knew this was wrong and filed a Motion to Reconsider with more legal argument. It also was denied by USCIS. At this point, many people would have believed USCIS. They would have wasted time and money and gone to Immigration Court to submit the green card application with a motion to reopen the second, terminated court case.
Confident in our strategy, we were forced to file a Writ of Mandamus in the Federal District Court, which is separate from the Immigration Courts. A Writ of Mandamus asks the Federal District Court to agree that we are correct, and to tell USCIS to accept the application.
But just the mere act of filing that Writ of Mandamus forced USCIS to take the case seriously. Before the Federal District Court could make a decision, the USCIS attorneys reviewed the case and determined we were right all along. Within a couple of months USCIS not only agreed to take the green card application, but it also granted the waiver and the green card itself.
A happy ending due to diligence and the experienced know-how of what tools to use to make the government act appropriately.
© 2021 Hill & Piibe, Immigration Attorneys