Joint Motion to Admin Close Granted by BIA

Our Client, a national of Mexico, was placed in removal proceedings before the Immigration Court in Buffalo, New York in February 2009, charging him solely with inadmissibility under INA §212(a)(6)(A)(i). Our Client has been residing in the U.S. since 1996, having entered without inspection. He is married to a foreign national from El Salvador, who herself has been in the U.S. since 2000 in Temporary Protected Status (TPS). The couple have been married for over seven (7) years and have two U.S. citizen children together – a girl, age 8 and a boy, age 5. Both children have various health issues and have developed psychological issues as a result of our Client’s immigration situation. Our Client is the primary breadwinner for the family and his employment also provides the family’s room and board.

In August 2010, our Client had his Individual Merits hearing wherein he applied for Non-LPR Cancellation of Removal under INA §240A(b). The Immigration Judge (IJ) reserved his decision and ultimately, retired before issuing a decision in the matter. In October 2012, another Immigration Judge reviewed the transcript and issued a written decision denying our Client’s application for relief, citing that our Client had failed to establish that his two minor U.S. Citizen children would suffer exceptional and extremely unusual hardship should he be removed, but finding that he was otherwise statutorily entitled to relief.

Upon receiving the decision, we not only promptly moved forward with filing an appeal with the Board of Immigration Appeals (BIA), but we also contacted ICE Chief Counsel’s office to advocate that they join us in filing a Joint Motion to Administratively Close Respondent’s removal proceedings with the BIA. We advocated that the family’s circumstances had changed significantly since our Client’s trial, including the fact that our Client’s wife had since furthered her educational background and was now employed full-time at a federally qualified health center. We also noted that it was hardly fair to our Client that the IJ who issued the decision was not the same one who presided over the Client’s proceedings, who was able to observe the Client’s and his family’s demeanor during testimony, etc. Lastly, we argued that in the past year, ICE has prioritized its enforcement objectives to focus its resources on the removal of criminal and aggravated violators of our laws. Neither our Client nor his wife would fit in this category. Additionally, given our Client’s wife’s status as a TPS beneficiary, and the lack of criminal record of either party, it is likely that should any comprehensive immigration reform be passed by Congress, they are likely to be able to benefit.

We were ultimately successful in our efforts and filed a Joint Motion to Administratively Close our Client’s removal proceedings with the BIA – a motion the BIA has now* approved*.

This case highlights the importance of not only pursuing all legal relief available to our client, but keeping up with the current legal trends to ensure that we are instituting fail-safe’s for our Client’s when recommending their case strategy. With this strategy, not only have we preserved our Client’s appeal, but we have also ‘paused’ their removal proceedings – this way, should Congress implement Comprehensive Immigration Reform (CIR), they will hopefully be able to benefit from the same, in the event that the BIA concurs with the IJ’s denial.