28 November 2012
BOARD OF IMMIGRATION APPEALS (BIA) GRANTS MOTION TO REOPEN
Man Gets Employment Authorization and Second Chance At “Green Card” Through Cancellation of Removal Application.
NOVEMBER 13, 2012 NEWARK, NJ: A Motion To Reopen filed by attorney Jai Hong Park Esq. of Cella & Associates, LLC has been granted by the Board of Immigration Appeals (BIA).
A Motion to Reopen is based on “facts or evidence not available at the time of the original decision”, must be supported by affidavits or other evidence, and must establish that the new evidence is material, was unavailable at the time of the original hearing, and could not have been discovered or presented at the original hearing.
In the case at hand, an alien filed a Cancellation of Removal. Cancellation of Removal is a defense to a charge of being removable, in which the alien can be granted Lawful Permanent Resident Status by an Immigration Judge (I.J.), if he or she can show that he or she is a person of good moral character, has resided continuously in the United States for at least ten years, and that his or her removal would cause his LPR or her USC spouse, parent or child exceptional and extremely unusual hardship. While such a Cancellation case is pending, the alien is entitled to work pursuant to an employment authorization document (EAD)
After a hearing on the case more than a year ago, the I.J. in Newark, denied the application indicating, that she did not see the requisite level of hardship to the USC spouse and children should the client be removed to Mexico.
However, after the denial of the application, the client’s spouse gave a birth to her child and she also revealed that she had been a victim in a sexual abuse case. As a result, she has suffering emotionally and she was vulnerable to any level of stress. This fact constituted “new or previously unavailable evidence” on the issue of “exceptional and extremely unusual hardship” to the client’s USC spouse and children.
Immediately upon receipt of this new and previously unavailable evidence, Cella & Associates filed a Motion to Reopen. The BIA agreed with our arguments and granted the Motion stating that this new evidence was significant enough to justify the case being reopened and remanded I.J. for a new hearing and further proceedings.