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In deportation proceedings, Married while BIA appeal what should I do?

Jacksonville, FL |

I am in appeal at BIA for about 1 year. I married my gf, a gc holder and she petitioned for me. Now she became a us citizen. If we change the app to petition from us citizen, can we get an approved I-130 before the BIA response? Can we apply for motion to reopen at BIA without approved I-130? Can I apply for prosecutorial discretion at the same time? Thank you all for your inputs!

Attorney Answers 5


  1. All of these case specific questions are best posed amd most meaningfully answerable by the lawyer handling your case

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  2. I agree with my colleague.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship.


  3. You can apply for an I-130, request to remand the case and take additional steps. However, it is not possible to fully advise you what to do without looking at the entire record.

    Kyndra L Mulder, Esquire
    4110 Southpoint Blvd., Suite 101
    Jacksonville Florida 32216
    (904) 296-7702
    Our office is located across the street from Homeland Security/ USCIS in Jacksonville.


  4. It is very important to notify USCIS and BIA about the fat that your wife became U.S. Citizen. You should be aware that there is a general prohibition against approval of I-130 if the marriage was entered during exclusion, deportation, or removal proceedings. Your wife has to request an exemption to the approval bar and she must provide clear and convincing evidence that the marriage is bona fide. An immigration attorney will help you to navigate through this process and assist you to gather the evidence that your wife need to support her request for exemption.


  5. If your case is still on appeal to the BIA you can file an I-130 and a motion to remand with the Board. The requirements for this are very technical and failure to properly follow them will result in the denial of your motion. It is not necessary for the I-130 to be approved prior to filing the motion to remand if the case is handled properly. If you do not have qualified immigration counsel representing you before the Board then you should retain counsel immediately. if you are already represented by competent counsel then you should be discussing this matter with him or her.

    While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation.

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