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Immigration send me a letter saying my I485 was denied, can I remarry again? and can I fill for Asylum. Questions in details

Spartanburg, SC |

I filled I485 marriage based, I am the beneficiary, my wife and I broke up . I had not yet received any greencard, she did not show up for the 2nd interview and I told them we broke up. I came into the US August of 2008 under F1 student but that expired in 2011. They sent me a letter on April 9 saying that my I485 has been denied and I have no legal status now and that I should make arrangements to depart the country as soon as possible. 1) am I being deported? and how long can I be here before someone comes knocking on my door to deport me?( I have no criminal record) 2) can I remarry again even before filling asylum and apply for I485 3) can I go back to F1? 4) can I fill asylum(my dad is a political prisoner happened in 2009 he is still in jail in Cameroon)?

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Posted

I filled I485 marriage based, I am the beneficiary, my wife and I broke up . I had not yet received any greencard, she did not show up for the 2nd interview and I told them we broke up. I came into the US August of 2008 under F1 student but that expired in 2011. They sent me a letter on April 9 saying that my I485 has been denied and I have no legal status now and that I should make arrangements to depart the country as soon as possible. 1) am I being deported?

To deport you, the government must place you in removal proceedings before an immigration judge. In those proceedings, the judge will have to answer two principal questions. The first question is whether or not the government is right that you are removable. It sounds like you are, since you admittedly fell out of student status. If the judge finds you removable, then she'll move to the second questions, which is whether or not you have any relief from removal. Certain individuals who violated the immigration laws may nevertheless remain in the U.S. and obtain residency.

and how long can I be here before someone comes knocking on my door to deport me?( I have no criminal record)

To start proceedings, the government will need to give you a charging document, laying out the factual allegations against you, and specifying the section(s) of law that make you removable. This document is called a Notice to Appear. It is not uncommon for USCIS to include the NTA along with an I-485 denial. It sounds like this didn't happen in your case. It may be that the government will wait and see if you leave on your own before starting proceedings. Or, it may be that the government doesn't feel you are an "enforcement priority," and is exercising its discretion not to start proceedings at this time, choosing instead to focus on those individuals who do have criminal records, or other factors that make them more of a priority than you.

Because you don't have a criminal record, even if the government does decide in the future to start proceedings, it is highly unlikely that it would come to your house and detain you. If you were detained, it sounds like you would probably be eligible for a comparatively low bond.

Barring some exceptional circumstances not revealed in your question, the government can't simply put you on a plane without going through the formal process of removal proceedings, giving you the chance to contest removal and/or apply for any relief from removal.

2) can I remarry again even before filling asylum and apply for I485

Yes, you can. But you must understand that the marriage must be real. If you enter into a sham marriage just to get a green card, there are extremely serious consequences. Which brings up a good point--in your recent I-485 denial did USCIS allege that you entered into a sham marriage?

If you're not in proceedings, you would go through the same process you already went through, by filing the I-130 and I-485 at the same time with USCIS.

If proceedings have already started by the time you marry, then there will be two main differences. First is that you won't file both applications with USCIS. Instead, you'll file the I-130 with USCIS, but you'll file the I-485 with the immigration court. Once you're in proceeedings, USCIS will lose jurisdiction over the adjustment application, but will retain jurisdiction over the visa petition. Makes things a little more complicated, but it's doable.

The second thing is that the standard used by USCIS in reviewing the I-130 will be more difficult to meet. On your last I-130, your spouse was required to demonstrate the marriage was real through a "preponderance of the evidence." In other words, proving that the marriage was "probably" a real one.

Once you're in removal proceedings, however, there is a presumption that the marriage is fake, designed only to stop y

3) can I go back to F1? 4) can I fill asylum(my dad is a political prisoner happened in 2009 he is still in jail in Cameroon)

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Mark Robert Barr

Mark Robert Barr

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Once you're in removal proceedings, however, there is a presumption that the marriage is fake, designed only to stop your deportation. The I-130 can still be approved, but your spouse will have to convince the government the marriage is real with "clear and convincing" evidence. In other words, there is less room for doubt. 3) can I go back to F1? You will not be able to change or extend your nonimmigrant status in the U.S. because you have fallen out of status. An application to change or extend your status must be filed before you fall out of status. You could potentially return to Cameroon and apply for a new F-1 visa, although your prior overstay would likely lead to a concern at the consulate that you wouldn't comply with the terms of the new visa. You also need to be concerned about statutory bars to returning. On the one hand, because you were in student status, you were not accumulating unlawful presence, even though you violated the terms of your visa and had fallend out of status. On the other hand, USCIS probably made a formal finding of status violation within the context of the adjustment denial, meaning that you would be accumulating unlawful presence as of the date of the I-485 denial. If you have more than a year of unlawful presence, and then depart the U.S., you can't return for a decade, unless you qualify for a waiver. If you have more than 180 days of unlawful presence, but less than one year, you can't return for 3 years, unless you qualify for a waiver. 4) can I fill asylum(my dad is a political prisoner happened in 2009 he is still in jail in Cameroon). You have a right to apply if you have a genuine and well-founded fear of persecution in Cameroon based on a protected ground. How strong or weak that potential claim is will depend on a more in-depth review of your situation. Hopefully, this is a start. I highly recommend meeting with a reputable immigration attorney in your area in the very near future. Best of luck!

Asker

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Thanks for this Mark. Very remarkable answers, very clear and straight to the point, you are awesome. The marriage was real but I cld tell they had doubt however USCIS never allege that the marriage was a sham marriage in any document they have sent to me or my ex wife. They denied the I130 for abandonment because she did not come for the interview and my 1485 under grounds of no legal status at this time. I looked and they did not send me the NTA. 1) Assuming they consider me low level priority for deportation, how long on average can it take before they actually send me this NTA? 2) Who makes the decision as to who is high or low priority for deportation ? 3)who makes the decision to actually send you this NTA? is it the interview officer that makes the call to send you the NTA?///// because the officer who interviewed me, after realizing I came without my wife and I said we were getting a divorce he became upset as if he was disappointed, then he said they were going to put me under removal proceedings, so im surprised he did not include in the denial the NTA.

Mark Robert Barr

Mark Robert Barr

Posted

1) Assuming they consider me low level priority for deportation, how long on average can it take before they actually send me this NTA? If you don't get an NTA with the I-485 denial, or within 60 days following the I-485 denial, then there's a pretty decent chance you'll never get an NTA, at least one that is based solely on the adjustment denial. Obviously, if you come to their attention again, especially as the result of a criminal incident, you're likely to get an NTA at that point. But even if you don't get an NTA in 60 days, there is no guarantee, or no "average time." They can choose to do so whenver they want. 2) Who makes the decision as to who is high or low priority for deportation ? The general guidelines are established by the head of ICE. Do a Google search, for example, for John Morton and Enforcement Priorities. I'm sure you'll be able to find the most recent memo pretty quickly. Case by case decisions applying those standards, however, will be made in the field. In your case, the initial decision was made by your examiner. That decision was probably screened by the USCIS Field Office Director. The decision was probably also sent to the ICE Office of Chief Counsel for your district. Hard to say, for sure. 3)who makes the decision to actually send you this NTA? is it the interview officer that makes the call to send you the NTA? The process would start with the examiner, but would be reviewed by supervisors in USCIS and ICE. ///// because the officer who interviewed me, after realizing I came without my wife and I said we were getting a divorce he became upset as if he was disappointed, then he said they were going to put me under removal proceedings, so im surprised he did not include in the denial the NTA. And that may still happen. In Denver, the SOP is to send the NTA with the I-485 denial. Other offices do it differently. Some, for example, will wait for the 30 day motion to reopen deadline to pass before issuing the NTA. Some offices, like Denver, attach NTAs to virtually all I-485 denials. Other offices show a more liberal use of discretion, and issue a far greater percentage of adjustment denials without placing the applicants in proceedings. Check with a local immigration attorney for the practices in your area. You can also ask to be put in proceedings, if that would work to your advantage.

Asker

Posted

Thanks a lot Mark, you have done an excellent job answering all my questions. Thanks again.

Posted

You need to see an immigration lawyer and decide what you will be doing.

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova , New York Immigration Attorney http://www.shautsova.com Blog: http://www.russianspeakinglawyerny.com

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1. You are deportable. Whether you are deported depends on what ICE does and whether you are successful in mounting a defense against deportation.
2. The ability to marry does not depend on immigration status.
3. Not without leaving the US.
4. Cannot be determined on the facts posted.

You should retain an experienced immigration lawyer to review all the facts, advise you, and handle the case. You can find one through http://www.ailalawyer.com.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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