New Evidence after Removal of Alien Can be submitted on Appeal

By Atty Crispin Lozano

When an alien is ordered removed from the United States by an Immigration Judge, generally an appeal is made to the Board of Immigration Appeals (BIA). While the case is on appeal, important evidence may come up not previously considered by the Immigration Judge.

Question: May new evidence be submitted by an alien to the BIA?
Answer: Yes. Newly discovered evidence may be submitted to the BIA to pursue adjustment of status to permanent resident, request a waiver or cancel removal.

Question: What are examples of evidence that may be submitted to the BIA?
Answer: Evidence that will prove your eligibility to an immigrant visa or waiver of deportability/inadmissibility or cancellation of removal may be submitted. This evidence must not be available at the time of the merit hearing with the Immigration Judge. Examples are approval of I-130 petition that gives you immediate eligibility for an immigrant visa; birth of a child if the issue is lack of good faith marriage; marriage to a U.S. citizen or new visa for immediate relatives that will qualify you to adjust status to permanent resident or for waiver of deportability/inadmissibility.

Question: What is the procedure for submitting new evidence?
Answer: The new evidence may be submitted to the BIA with a Motion to remand the proceedings to the Immigration Judge. A Motion to Remand is a request to send the case back to where it originally comes from before the appeal. Upon remand the Immigration Judge will decide whether the new evidence is sufficient to grant an immigrant visa or waive deportability/inadmissibility or cancel deportability.

Question: What are the requirements for filing a Motion to remand?
Answer: The supporting documents that prove eligibility for an immigrant visa or waiver of deportability must be submitted with the motion to remand.

Question: How do I know if I qualify to submit new evidence on appeal?
Answer: You should consult immediately with an immigration attorney if the situation applies to you since time is of the essence on this matter.
Immigration News
1. On January 5, 2009, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.
2. We recently received a grant of asylum for the son of a victim of kidnapping by the NPA in the Philippines.
3. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court. She has a U.S. citizen mother and daughter and she has been in the U.S. for 17 years. In another case, on October 29, 2009, our request for waiver of misrepresentation for entering as single but actually married for our client Mr. D in Fresno, CA was approved by the Immigration Judge. He is the son of a U.S. citizen and he has been in the U.S. for 20 years. Mr. D can now apply for naturalization and bring his family to the United States. Waiver application is discretionary to the judge after weighing positive and negative factors.

Tip of the Week

1. Green cards issued in error by the USCIS on an adjustment of status may not be rescinded or taken away after five years.
2. Green cards without expiration date should be renewed. They have the alternative of applying for naturalization.
3. Applicants for adjustment of status through marriage are being separately interviewed if there is a wide difference in age, education, language, or suspicions in the application filed.
4. Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. It is also needed by employers to charge to expense payment for contractual job. Our office assists clients in obtaining ITIN.
Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University College of Law in Fullerton, California. He is also a CPA and a Bachelor of Business Administration Cum Laude graduate. His offices are located at 1290 B Street, Suite 203, Hayward, California 94541; at 17057 Bellflower Blvd. Suite 205, Bellflower CA 90706 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone number (510) 538-7188.