Immigration question! Can someone please explain to me this by example for each if possible!

Asked almost 2 years ago - Miami, FL

§ Sec. 103.5 Reopening or reconsideration.
(a) (2) (i) and (ii) please explain what abandonment means in here! Thanks

Attorney answers (3)

  1. David H. Stoller

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    Answered . Thanks for your inquiry. I think that the answer to your question is not an explanation of the operative words in this provision of the code of federal regulations but it is instead to recommend that you hire an attorney. We are trained to figure these things out and we get paid to figure them out in a way that best serves the needs of our clientele. Working backward, it would appear to me that you have received a letter from Citizenship and Immigration Services (CIS) denying an application for an immigration benefit was filed. And the reason for the denial was that you did not respond to a Request for Evidence (RFE).

    The provisions of the code that you cite in your inquiry relate to the basic requirements for setting forth and filing a motion to reopen with CIS. The word "abandonment" which is used in this provision generally is used when there has been an application which has been filed and where the government deems the application to have been abandoned in the sense that the applicant either took action to make evident that he/she/it no longer wanted to pursue the application or the applicant did not respond to an RFE within the timeframe permitted in the RFE itself.

    If there was an RFE and the information which was requested was not provided in the time frame scheduled by CIS, the application will be denied. There is no appeal of an application which is denied because it was abandoned. The way to overcome the denial is to file a motion to reopen and to satisfy the provisions of 8 CFR §103.5(a)(2)(i), (ii) or (iii). In other words, if you can meet any of the requirements set forth in the three subdivisions then you can argue that CIS improperly denied the application because the government either did not send the request or the evidence that the government was requesting was either there or was irrelevant to consideration of the application which was pending.

    So I return back to my recommendation above, go and see an attorney and consult with someone who can provide an opinion that will hopefully save you time and money. One of the problems that I have seen repeated again and again is that denials happen and the process goes off the beaten path because appeals are ignored in favor of filing motions to reopen which end up getting the applicant nowhere. In this case it would appear that there is an abandonment issue so an appeal may not be the proper vehicle by which to challenge the denial. Let someone whose business it is to understand the various way of handling these issues handle these issues for you.

    Like anything else, the client is the one that makes the decisions on how best to proceed. And truth be told, there is a lot of the work that I do every day that someone who is not trained in the law could do. I would not suggest that my license to practice law means that I can complete a form any better than anyone else who looks at a Form I-290B and can provide the information requested therein.

    What I can do, however, is that I can assess a problem and I can explain to a client the different risks and consequences of taking different pathways available to obtain the same result. Just because the law provides a pathway to file paperwork with the government does not necessarily mean that submitting the form that CIS mentions in its denial letter is the right way to do. My take on it is that CIS often times has no idea of how to handle the case that it just denied. CIS frequently misstates the law and provides incorrect instructions on how one can handle the denial which has been received. Not trying to scare you into hiring an attorney, but I am trying to share with you the importance of hiring someone who knows a little bit about the work that you need to have done. So rather than handle it on your own thinking that the completion of the form is not all that big of a deal, consult with an attorney who can provide the guidance that you should have. Good luck,

  2. Haroen Calehr

    Pro

    Contributor Level 17

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    Answered . This is a complex situation and you are doing your self and your case a diservice by not hiring competent immigration counsel to handle your case. I can help or any of the other competent colleagues preferably in my opinion AILA attorneys that can assist you. In general abandonment means you failed to timely respond to the government's request for additional evidene in support of your application/case or you failed to show up for a scheduled interview and therefore the government felt you have abandoned your application. You have the opportunity withi 30 days of the decision to have the government reconsider their adverse decision or reopen the negative decision and show them proof of why their decision was wrong and should be overturned or re-opened.

  3. Rebecca Cook Black

    Contributor Level 15

    Answered . i agree with my colleagues.

    This is a general answer only and does not imply that I am your attorney giving advice with full knowledge of all... more

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