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Challenge US Citizenship And Immigration Services Findings Prior To Removal Proceedings

In 2007, a native of the Philippines sought to adjust his status by having his U.S. Citizen wife file an I-130 immigrant visa petition. In correlation to her filing, he also submitted an I-485 application to adjust his status to  lawful permanent resident. Part of this process consists of being interviewed by immigration authorities to show that your marriage is bona fide. In 2009, during her interview, his wife admitted that he had promised to pay her to marry him for immigration purposes. She subsequently withdrew her I-130 immigrant visa petition and his I-485 application to adjust status were denied. He was also notified that any future petitions on his behalf could not be approved based on his deception for the purpose of evading immigration laws.

The Ramifications of Fraudulent Filing

In 2012, he was served a Notice to Appear by the Department of Homeland Security. He was charged with removability based on overstaying his visa, working without authorization, and fraudulently attempting to adjust his status through a spouse. In May 2013, he appeared before an immigration judge and admitted to all of the factual allegations with the exception of the marriage fraud, which he denied. He was then scheduled for a new hearing of the contested charge of fraud for October of 2013.

A Lucky Break from a Government Shutdown

In the fall of 2013, after retaining new counsel, he asked for a continuance to develop his defense on the fraud charge. Although the continuance was not formally granted, a government shutdown gave him a delay of several months. The case went before a judge in January 2014. During that hearing, the fraud charges were dropped however the judge proceeded on the other uncontested grounds for removability. The judge also denied his request for a continuance to challenge the USCIS findings of fraud. He appealed this decision to the Board of Immigration Appeals (BIA) but was denied. He later sought a petition to have the BIA’s decision reviewed.

Due Process

On August 31, 2016 the review concluded that the immigration judge did not err in denying his request for a continuance and went further to state that if he had pursued an appeal of the fraud charge before he was in removal proceedings, he may have had a case. It was determined that the alien was not deprived of any due process right.

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