Appeals & Waivers
courtPic
Joint Motions:
  • The DHS may join in a motion to reopen (or a motion to the BIA to remand) for consideration of adjustment of status pursuant to INA § 245 if such adjustment of status was not available to the respondent at the former hearing, the alien is statutorily eligible for adjustment of status, and the respondent merits a favorable exercise of discretion.
  • To request DHS’s consent to file a motion to reopen with Immigration Court or the Board of Immigration Appeals, the Law Offices of Caro Kinsella will contact the District Counsel’s Office that represented the DHS during your immigration proceedings. Such a request must be made in writing and supported by affidavits or other evidentiary material establishing proof of current eligibility for adjustment, to include, if applicable, a complete copy of the adjustment application, and visa petition approval.
  • Statutory Bars: Obviously, DHS’s counsel may not join in a motion to reopen if an alien is ineligible for adjustment due to any applicable statutory bars such as those due to overstaying a grant of voluntary departure (Sec INA §240B[di[2000]; §242B[e][2][1996)) or an in absentia. order (See *240[b][51[20001; §2428[e][1996]).
Board of Immigration Appeals:
  • When you lose a case before the Immigration court, you can file an appeal before the Board of Immigration Appeals (BIA)
  • The BIA is part of the Executive Office for Immigration Review (EOIR) which falls under the Department of Justice
  • The BIA is the highest administrative body for interpreting and applying U.S. Immigration laws
  • Direct appeal to the BIA must be filed within 30 days of the Immigration court’s decision
  • A notice of appeal is filed on EOIR-26 form
Prosecutional Discretion:
  • Director of U.S. Immigration and Customs Enforcement (ICE) John Morton released a June 17, 2011, memorandum intended to provide additional guidance to ICE personnel on exercising prosecutorial discretion. In this context, favorable prosecutorial discretion refers to the government’s ability to choose not to enforce certain penalty provisions within the immigration laws against a particular person, thereby providing some relief in deserving, sympathetic cases
  • Director Morton points out that the agency does not have the required resources to pursue every administrative immigration violation

The term prosecutorial discretion can encompass a wide variety of actions or temporary inaction, depending upon the context.
Favorable and Unfavorable Discretionary Factors for ICE to Consider

Sua Sponte:
  • Sua Sponte reopening may only be used in exceptional circumstances and is not meant to cure filing defects or circumvent the regulations
  • sua sponte definition – legal:
    Regarding a judge or court, to raise an issue or take an action independently of any request or suggestion made by the parties or lawyers; Description of action taken by court in absence of any party urging such action to be taken
  • Neither time nor one motion numerical limitation apply

Ticker

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any subject matter. This Web site is not intended to be an advertisement or solicitation. Material contained in the Law Offices of Caro Kinsella web site (www.immigrationlawyerfl.com) is for general information only and does not constitute legal advice or solicitation of legal services. Transmission of information from this site is not intended to create, and its receipt does not constitute, an attorney-client relationship between us and the reader. Caro Kinsella, Attorney at Law expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this website. The transmission of the website, in part or in whole, and/or any communication with us via Internet e-mail through this site does not constitute or create an attorney-client relationship between us and any recipients.

Some links within the website may lead to other websites, including those operated and maintained by third parties. Caro Kinsella, Attorney at Law includes these links solely as a convenience to you, and the presence of such a link does not imply a responsibility for the linked site or an endorsement of the linked site, its operator, or its contents. Nothing in this website or the linked blogs/websites should be used as a source of legal advice. Each legal problem is different, and past performance does not guarantee future results. This website does not create an attorney-client relationship between you and Caro Kinsella, Attorney at Law. Nor is this website intended to do so.

THIS SITE AND ITS CONTENTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Custom Website Design by 561Media