Eligible applicants for adjustment of status who claim under Section 245(i) for having filed for labor certifications or for alien relative petitions prior to April 30, 2001 or who are immediate relatives of U.S. citizens who may not be in legal status and whose applications have been denied by Immigration, may apply under Section 245(K) to review these denials. This section permits an applicant to resubmit within 180 days of the denial plus anytime he/she was not in lawful status or engaged in unauthorized employment prior to filing the original adjustment of status.
The Immigration Service beginning in 2005 started to deny adjustment of status cases particularly for nurses because while adjustment of status applications were pending, the applicants fell out of status.
The Immigration Service almost never decides a permanent residence case within 180 days and yet Immigration was holding that alien nurses or other applicants had fallen out of status while they were waiting even though it was Immigration’s fault for taking so long. Immigration was penalizing these applicants for the Immigration’s failure to process these cases within a reasonable period. These denials were contrary to the operating instructions of the INS itself initiated in 2000, namely, that a properly filed application for adjustment of status stays the imposition of an unlawful presence while an applicant is awaiting a grant of permanent residence. Notwithstanding Section 245(K) Congress’ amended law, the Immigration has substituted its arbitrary interpretation of this law for what Section 245(K) clearly authorizes, namely, to review these denials of adjustment of status. Therefore, in such denials, it is worthwhile to resubmit under 245(K) in meritorious cases and await a decision of the Courts to reverse these arbitrary actions by the Immigration Service.
MOTION TO REOPEN DEPORTATION ORDERS
Before 1992 any manner of Notice of Hearing provided an alien charging the nature of the charges and the time and place where a hearing would be held was considered sufficient. If the alien did not appear, then the Immigration Service (INS) was required to serve the Notice of Hearing personally or by certified mail. Before an Order of Deportation could be entered, a return receipt had to be shown proving receipt by the alien, or a responsible member of the household.
From 1992 until 3/31/1997 service had to be personal or by certified mail. After April 1, 1997, the INS’ methods changed: regular mail was allowed if personal service was not practical. In real terms, this meant that the INS sent all Notices of Orders to Show Cause of Hearings by ordinary mail.
Recent holdings in the Court of Appeals, 2nd Circuit, indicate that aliens must have sent written updates of their address changes to enable them to open Deportation Orders in Absentia. However, the Second Circuit has also held that the Court will consider whether the alien had not received the hearing notice sent by regular mail and that the central issue is not whether the notice was properly mailed, but rather whether the alien actually received the Notice.
These cases in the Second Circuit decided that Notices of Hearing sent by first class mail do not carry a presumption of delivery, but rather it is a rebuttable presumption. The Court must consider all relevant evidence, including circumstantial evidence, to determine whether the alien has rebutted the presumption.
The favorable aspects in rebutting this presumption in this case before the Second Circuit were that the alien had submitted a Labor Certification application, he has properly notified INS of his change of address, and he had applied for adjustment of status and in this application, he had disclosed his order of removal.
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