QUESTION
Am I eligible to adjust status based on appoved I130 with my USC husband?
Asked on Apr 26th, 2013 on Immigration - New York
More details to this question:
I applied i589 asylum in 2008 in Los Angeles. It was denied in the immigration office, and then my case was in immigration court. I moved to San Francisco and married with my US citizen husband on 2011, and I got i130 approved on Jan, 2013. I sent my I485 application to uscis and court. April, 2013 was my individual hearing date for asylum. In the court, my attorney wanted to withdraw asylum and use i130 to apply for i485.The prosecutor rejected to adjust status by i130 and she asked the Judge to justice my asylum case because prosecutor accused me of fraud in asylum application. Finally, the judge rescheduled another individual hearing 2 years later. My question is: If my asylum case will be justice as frivolous or not credible(but not fraudulent). Am I still eligible to adjust my I485 in the court based on my approved I-130 with my USC husband? Or I will get "order to removal" in the court right away, and need "motion to reopen" my case in the future to adjust my status? Thanks a lot!!
4 ANSWERS
Immigration Law Attorney serving Long Beach, CA
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Law Offices of Brian D. Lerner
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If it is ruled to be a 'frivolous asylum application', you will not be entitled to any immigration benefits for the rest of your life.
Answered on May 07th, 2013 at 3:58 PM
If your application is found to be fraudulent, you will not be able to adjust. If your application be merely denied, you should be able to use other defenses against deportation, like adjustment of status. However, adjustment is not a right but a discretionary relief.
Answered on Apr 29th, 2013 at 3:51 AM
Immigration and Naturalization Attorney serving San Diego, CA
Partner at
Feldman Feldman & Associates, PC
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Too complicated to answer in an email. I suggest you make an appointment to consult with an immigration attorney. Do you have a legal entry or 245(i) eligibility allowing you to adjust status? Was there a frivolous finding on your asylum case or was it withdrawn first?
Answered on Apr 28th, 2013 at 10:16 PM
Adebola O. Asekun
Whether you can adjust your status or not under these circumstances ultimately depends of if the immigration judge"IJ" agrees with DHS attorney that you violated 8 C.F.R. s.208.6. This means you either filed a false or fraudulent I-589; submitted false or fraudulent documents in support thereof or that you made false or materially false statements or misrepresentations in support of your I-589. That you later withdrew the application or documents or that you recant the false statement or even that the immigration judge has not decided the asylum case itself is irrelevant. Note that while DHS can argue that you made a frivolous asylum claim, only the IJ has power to make that decision, the consequences of which is that you are permanently barred from ever getting a green card in the US despite marriage to a US citizen. Given its very negative consequences, immigration judges are very careful and the record of the case must clearly show that a frivolous asylum issue exists and also that you were warned of the consequences in advance.
Answered on Apr 28th, 2013 at 9:40 PM