she entered with a passport with a visa made for her with different name, she was arrested 11 months after she entered, we did an application for asylum based on domestic violence, after several hearings the case was denied based on testimony that did not coincide with the previous, the translator was not of her native language and had some issues with asked questions, right after i filled with the board of appeal and case still pending. i m a U.S. Citizen and We Have five years old son. her divorce was finalized last december and we married on january of this year , can we adjust her status while is on the board of appeal.
No, you cannot adjust status while the appeal is pending with the BIA. Neither the U.S. CIS or an immigration judge has jurisdiction to field the application. The underlying removal order has to be rescinded first, and that can only be accomplished by filing a motion to reopen, which could be time-barred. You absolutely need a lawyer to help assess whether this is possible; it is simply too complicated to undertake yourself.
You cannot adjust status if your case is in removal proceedings. You can file a motion to remand, if she is eligible for adjustment (would probably need a waiver due to the fraud during entry).
Let me know if you have further questions.
Attorney at Law & CPA
Law Offices of Rehan Alimohammad, PC
Houston Office: 281-340-2074
Toll Free: 800-814-3920