In 1985, he got caught crossing the border in El Paso, TX. He received a deportation order then but never left. He has U.S. Citizen wife(married for 25 yrs) and two kids (U.S. Citizens). It became clear that he can't benefit from I601A provisional. It says on the FOIA paper requested back in 1993 that his sole reason for deportation is for illegally entering the U.S. (no drug, no criminal). Experts explained that we can re-open this deportation case. My questions are.
1. we live in delaware/philadelphia area, do we need a lawyer from nearby? Please recommend laywer for us.
2. based on your experience, is it easy to open the case? likelyhood to win? and how long is the process?
You could ask the DHS attorney to jointly reopen his removal proceedings. If the equities are there (good moral character, files his taxes, hardships on US citizen family members) DHS might be willing to reopen his proceedings. You can use a local attorney to make this request. You dont necessarily have to find an attorney in Texas
Check those FOIA papers again. Are you sure they say he was ordered 'deported?'
If he was caught at the border, trying to enter the U.S., then it's possible he was actually ordered 'excluded.' Back then, there were 2 types of proceedings in front of an immigration judge--deportation proceedings (for those who had already entered the U.S.) and exclusion proceedings (for those who were trying to enter the U.S.).
On the one hand, for him back then, the difference between an 'exclusion' order and a 'deportation' order were probably insignificant. Under either order, he was told he had to leave.
But you said he never did leave. And now there is a tremendously important reason for clarifying whether he had an order of 'exclusion' or an order of 'deportation.'
If he truly has a deportation order, then my colleagues are correct, you'll need to get the case reopened before the immigration judge will have the ability to do anything--most likely the adjudication of a green card application filed on the basis of an approved immediate relative petition filed by you.
On the other hand, if he actually has an unexecuted order of exclusion, then he may be able to seek adjustment of status before USCIS without ever reopening his exclusion proceedings. There is some risk in doing so, since the exclusion order would still be valid, but if the case is otherwise clean, then USCIS will typically entertain these types of applications.
So, which was it? An order of deportation, or an order of exclusion? And what document(s) are you looking at to answer this question?
Too many questions to be meaningfully answered on avvo.
Your case is going to be VERY expensive. It needs to be determined whether or not the Order of Removal can be opened. If it can be shown that this individual never received notice of the court date, then it is possible to reopen the case. This is yet to be determined.
You need to consult with an experienced immigration attorney in your area.
1. Felix Velter - located in PA Bucks County area (I believe you can find him here on avvo)
2. many factors go into the assessment - hard to say at the forum
Motion to Reopen is done with TX and then case will have to be transferred to your area - happens all the time, any seasoned attorney has done this plenty of times
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