Last month, Cella & Associates, LLC, (“C&A), was able to have a previously-denied Application for Adjustment of Status Reopened for a Citizen and National of Peru.
The Applicant, a native and citizen of Peru, was denied Adjustment of Status to that of a Lawful Permanent Resident based upon on the USCIS’s determination that the unfavorable factors in her case outweighed the favorable factors, and, as such, a favorable exercise of discretion was not warranted under (“INA”), INA 245(a).
The applicant, “Catalina”, entered the United States in 1992 without inspection. In 2000 she filed an Application for Advance Parole to allow her travel abroad and re-enter the United States based on a pending Adjustment of Status Application under INA §245(i), stemming from the I-130 Petition For Alien Relative her U.S. Citizen (“USC”), then-husband, had filed on her behalf. Catalina traveled to Peru and was Paroled into the United States. This application was later rescinded as the marriage ended.
In 2019, Catalina filed another I-485 Application for Adjustment for Status, concurrently with Form I-130 Petition for Alien Relative, filed on her behalf by her adult USC son, under the “grandfathering” provisions of INA § 245(i). Subsequently, Petitioner and Beneficiary were scheduled for an interview at which time Form I-130 was approved while a Request for Evidence was issued requesting more information regarding Catalina’s criminal history. Additional evidence was submitted, and USCIS denied Catalina’s Adjustment of Status Application based on the officer’s exercise of discretionary. A Motion to Reopen the denied Adjustment Application on the basis that the officer’s denial constituted an abuse of discretion under INA §245(a).
Section 245(a) of the INA provides, in pertinent part, that:
The granting of Adjustment of Status to that of a lawful permanent resident is a discretionary benefit. Mere eligibility is not the only factor considered in adjustment of status. Adverse factors may preclude a favorable exercise of discretion by USCIS. An applicant must demonstrate eligibility for adjustment of status as a matter of law and in the exercise of discretion. Generally, favorable factors such as family ties, hardship, and length of residence in the United States can be considered in the favorable exercise of administrative discretion.
Where adverse factors are present in a given application for adjustment of status under section 245, Immigration and Nationality Act, as amended, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors adjustment will ordinarily be granted, still as a matter of discretion. [Matter of Ortiz Prieto, 11 I. & N. Dec. 317, superseded.]
Attorney Valery Cury of C&A was successful in demonstrating that the denying officer had misconstrued some facts in his I-485 denial; that the applicant had shown outstanding favorable equities; and that the officer’s denial of the Adjustment application constituted an abuse of discretion. Specifically, the denial notice referred to two arrests which never actually happened, the wrong charge for another arrest, and an arrest for failure to attend a municipal court hearing when Catalina was in fact detained and had been released that same day.
Additionally, the denying officer wrongfully considered as an adverse factor, Catalina’s use of several names, which, according to the law, has no bearing on the determination of Adjustment of Status eligibility, as they legally having been her maiden and married names.
Finally, the denying officer wrongfully listed several trips that Catalina had made within the United States, as is if they had been international trips, made in violation of US Immigration Law.
Catalina has two U.S citizen children ages 25 and 17 years old that need their mother for care and protection, since they do not have their father and do not know his whereabouts. Catalina is gainfully employed and has been working three jobs to support her children, particularly her 17 year-old son, who is still in high school. The applicant has been a person of good moral character for the last 12 years and continues to work to provide her children with a better future – a future that she was not able to have.
The Motion to Reopen was approved on March 24, 2021, and Catalina’s Adjustment of Status case was reopened. To prevail in such cases, it is of the utmost importance to have cooperation from the applicant with documentation, along with critical research in resolving possible issues, timely submission of documents, excellent preparation and communication with the client, and an exceptional case strategy.
If you, or someone you know, needs help through the immigration process, please call Cella & Associates on our national toll-free free number 877.583.7080 and we will schedule a confidential consultation via WhatsApp, Skype, Telephone or Zoom. In addition to English, consultations can be in Albanian, Italian, Portuguese, Russian and Spanish. Although we do hold in-person consultations, when necessary, in our Clifton, New Jersey and Aventura, Florida offices, we discourage such consultations (due to COVID concerns) for your safety as well as for the safety of our attorneys and staff.
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**Cella & Associates will not prosecute cases which we know, or have reason to believe, are fraudulent or frivolous.
Joseph G. Cella, Esq. is the managing founder of Cella & Associates, LLC. During his nearly 30 years of practicing Immigration Law, Mr. Cella has been published in the New Jersey Law Journal, and has authored many articles on Immigration Law. Mr. Cella has also lectured on numerous topics of immigration law for a number of organizations including the Federal Bar Association.
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