James C. Tai, Attorney at Law

When an application for asylum (I-589) is filed with USCIS, it is considered an affirmative asylum application. USCIS can approve the asylum application or refer it to an immigration judge in immigration court. A referral of an asylum application is not a denial of the asylum application. USCIS has referred it to the immigration judge because there may be some outstanding factual or legal issues, for which the immigration judge needs to rule on.

The applicant will receive an official notice from USCIS referring him/her to the immigration judge. The applicant will then later receive a Notice to Appear (immigration court charging document) and then a Notice of Hearing directing the applicant to appear in immigration court on a specific date.

Once in immigration court, the immigration judge conducts a “de novo” hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS. Additional and supplemental documents can be filed with the immigration court in support of the asylum application.

An individual hearing will then be scheduled by the immigration judge. At the individual hearing, the applicant will testify on his/her own behalf, and present any additional evidence or witnesses in support of his/her application. The applicant may be cross-examined by the DHS trial attorney and/or by the immigration judge. At the conclusion of the individual hearing, the immigration judge will render a decision as to the grant or denial of asylum. The immigration judge will also consider and rule on whether the applicant should be granted withholding of removal under INA 241(b)(3), withholding of removal under CAT  (Convention against Torture), and deferral of removal under CAT. A denial of asylum, withholding of removal under INA 241(b)(3), and/or withholding/deferral of removal under CAT, by the immigration judge can be appealed to the BIA (Board of Immigration Appeals) within 30 days of the immigration judge’s decision.        

1. Deferral Under the Convention Against Torture (CAT) granted to detained individual from Romania who suffers from sever mental illnesses. 

2. Immigration Judge held that a conviction for Trafficking in Amphetamine in violation of Fla. Stat. §893.135(1)(f)(1)(a) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

3. Immigration Judge held that possession of cocaine with intent to purchase in violation of Fla. Stat. §893.13(1)(a)(1990) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

4. Immigration Judge terminated proceedings holding that Fla. Stat. 540.11(3)(a)(3)(Unauthorized Sale of Sound Articles) is not a crime involving moral turpitude.   

     Recent immigration court rulings have held that Fla. Stat. 812.014(2)(c)(1) [grand theft] (petty theft included) is not a crime involving moral turpitude (CIMT), if the record of conviction (modified categorical approach) can not establish whether Respondent was convicted for temporary or permanent deprivation and appropriation. Further, retail theft (shoplifting) under Fla. Stat. 812.014 is not a CIMT and that Matter of Jurado-Degado 24 I&N Dec. 29, 33 (BIA 2006) is not applicable to the Florida statute. 

 If the respondent is only removable/inadmissible for the Fla. theft offense, termination of the case may be appropriate. 

      Further, these Fla. theft charges should not trigger stop-time rule for cancellation of removal purposes, and may not constitute aggravated felonies (even if 1 year of imprisonment). 

    See attached file for sample motion to terminate. 

1. Purpose of the I-751

When a Green Card applicant has been married for less than 2 years, the applicant is initially issued a Conditional Green Card, which is good for 2 years. Just before the expiration of the conditional period, the I-751 is filed to apply for a permanent Green Card (which is good for 10 years). The purpose of the I-751 is to reaffirm that the initial marriage took place in good faith.

2. When to file

The I-751 must be filed with USCIS within 90 days prior to the 2-year anniversary of
the issuance of the conditional Green Card.

3. Filing Jointly vs. Filing Single

When you are still married to the same person you were married to at the time of the issuance of the conditional Green Card, you will file the I-751 jointly.

You will file as a single person in the following cases:

a. You entered the marriage in good faith and your spouse has died;

b. You entered the marriage in good faith and you are now divorced from the person to whom you were married at the time of the issuance of the initial Green Card (even if you’re now remarried to someone else, you will file as single);

c. You entered the marriage in good faith and you have been battered or subject to extreme cruelty by your petitioning spouse;

d. Your parent was a conditional resident who entered into the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or permanent resident spouse or by your conditional resident parent; or

e . The termination of your status would result in extreme hardship to you or a dependent child.

4. Standard for the I-751: Good Faith Marriage (see Matter of Soriano)

To determine whether a marriage was entered into ‘in good faith,’ “[t]he central question is whether the bride and groom intended to establish a life together at the time they were married.” See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).

To establish ‘good faith’, the court will consider documents such as:

a. proof that the spouse has been listed as the beneficiary on the petitioner spouse’s life insurance policy;

b. documents showing joint ownership or joint responsibility (e.g. property leases)

c. documents showing a comingling of finances (e.g. tax returns, bank statements)

d. shared experiences

e. marriage ceremony

f. birth certificates of any children born as a result of the relationship

5. Common scenarios in which an I-751 matter would end up before an Immigration Judge

You never filed an I-751 (whether you’re still married or not)

a. If you were issued a temporary Green Card and never file the I-751 to remove
the conditions, you can be placed into removal proceedings for having no lawful status once the temporary Green Card has expired.

b. If this happens, you can still file the I-751 with USCIS and an Immigration
Judge (IJ) can either grant continuances on your removal proceedings while the I-751 is being decided, or the IJ can administratively close your case until
USCIS issues a decision on the I-751. If the case is administratively closed
until a decision is made on the I-751, the IJ would then re-calendar your case
to restart proceedings once USCIS has made its decision.

An I-751 was filed and denied by USCIS based on the merits.

a. The IJ will hold an individual hearing to review the decision of USCIS.

b. You would not be required to re-file the I-751 or pay a new filing fee.

• An I-751 was filed and denied by USCIS based on failure to attend interview.

a. The IJ will hold an individual hearing to decide whether to grant the I-751.

You would not be required to re-file the I-751 or pay a new filing fee.

• In all of the above scenarios, the I-751 can be filed jointly or separately. If not

filing jointly, the scrutiny is generally higher as to the good faith marriage.

Note: I-751 can still be filed if the immigrant spouse is now married to someone besides the spouse for which the conditional green card was obtained through. In that case, the immigrant spouse would apply as a single person because the I-751 is based on the
marriage under which the initial Green Card was issued.  

Client was granted withholding of removal under INA § 241(b)(3) by a non-detained immigration judge based on fears of persecution from South Korea due to his sexual orientation.

6 detained LPR cancellation of removal (42A) GRANTED.

9 non-detained LPR cancellation of removal (42A) GRANTED, including 1 INA 212 (c) GRANTED, and 1 INA 212(h) hardship waiver GRANTED. 

Assisted detained client to get married to a United States citizen fiance while being detained by ICE, then successfully filed and represented client before a detained immigration judge for adjustment of status with a INA 212(h) hardship waiver. GRANTED.