On December 2, 2013, I completed an adjustment of status matter I have been pursuing for a Guatemalan client for the past 6 years, receiving an order by Immigration Judge Coughlon of the Los Angeles Immigration Court, awarding my client lawful permanent residence and finding that there was sufficient circumstantial evidence to establish that my client's brother had indeed grandfathered my client under INA §245(i) by filing the brother's Petition for Alien Relative (I-130) on April 30, 2001.
I took on this case on in 2007, filing an I-130 petition and I-485 adjustment application for the alien, with his United States Citizen (USC) spouse as the Petitioner, using the the alien's assertion that an I-130 had been filed on April 30, 2013 by the alien's USC brother, to permit grandfathering under 245(i). Without such grandfathering, the alien would have faced the prospect of having had to return to Guatemala to complete his immigration to the US via the American Embassy in Guatemala. He was faced however, with a 10 year bar to admissibility in the event he left the United States, since he had entered the US without inspection and remained here unlawfully for many years. Whether or not he would have qualified for a waiver of inadmissibility should he have left the country (or the more recent 601-A Provisional Waiver) is uncertain. What is certain, is that I was not going to permit him to depart the United States to find out whether the then available 601 waiver would be approved or not, since he may have found himself locked out of the US if the waiver was denied. The relative petition, filed on his behalf in 2001 would allow him to pay a $1,000.00 penalty and complete his immigration through adjustment of status here in the US.
The problem was that the alien had no direct proof that the grandfathering petition was filed on the sunset date of April 30, 2001, since the petition, once filed, had been erroneously rejected by USCIS and returned to his brother upon filing. The returned petition was discarded by the brother and a new petition filed after the sunset date. Thus, at the adjustment of status interview in November of 2008, USCIS took the position that the adjustment could not be granted because we could not prove with direct evidence (such as a formal receipt notice) that the petition was filed on or before April 30, 2001. Yet we had presented a wealth of circumstantial evidence, including postal receipts and even the checklist from the USCIS mailroom which was returned to the alien's brother, indicating that a form I-130 had indeed been received by that mailroom timely. This however, did not satisfy the USCIS District Office, or later, their Service Center to whom we applied for adjudication of the matter after the interview. At length the Service Center denied the adjustment, and I took the alien into removal proceedings before the Immigration Judge to resolve this matter and other forms of relief which I believed were available to the alien.
After several years of negotiation with ICE and hearings before the Immigration Judge, ICE's counsel, Ms. DeFranc, myself and the Judge came to a consensus that indeed the alien had proven filing of the requisite petition on the sunset date, and after a short examination by the Government's attorney, Judge Coughlon granted the alien's adjustment to LPR status. Because the alien was adjusted through his wife (a USC) and technically not the brother, the alien will be eligible to apply for USC status in 3 years.
My client has expressed his gratitude to the Immigration Judge and Nancy DeFranc of ICE for their efforts in this life-changing event.
By Duane Hamilton
