December 27, 2010: Is TN Valid if Adjustment of Status is Filed?
Can Deportation of Mother be Stopped?
I have had a green card for 5 years. My naturalization interview is scheduled on January 10, 2010. Is it possible to stop deportation of my mother if her removal proceeding is pending and her individual hearing is scheduled before that date in an Immigration court (her employment based I-485 was denied)?
Will I be able to fill out an I-130 petition for my mother when I become a citizen and help her with getting her green card even if she gets a final deportation order in the court?
Unfortunately, the prospect of you becoming a United States citizen soon after your mother’s Individual Hearing is not a legal ground for the Immigration Judge to not go forward with your mother’s hearing. However, this fact can certainly be argued to the judge.
Furthermore, depending on the procedural history of the case, the persuasiveness of the argument and the response by the Assistant Chief Counsel, the judge may continue the case. However, since you are not a United States citizen at the moment, the Assistant Chief Counsel may argue and the Judge may determine that the prospect of you becoming a United States citizen is insufficient grounds for continuing the case because no immediate relief from deportation is available.
Assuming your mother has no other relief from deportation and she is ordered deported, you may file a Motion to Reopen with the court when the time is appropriate. The Motion to Reopen must establish that relief is currently available by providing evidence that is material and was not available or could not have been discovered or presented at the previous hearing.
The Motion to Reopen must be filed within 90 days after the decision. There are limited exceptions to this time requirement. Also, only one such motion is permitted. When you become a United States citizen and an I-130 petition is approved, then a Motion to Reopen may be warranted. Remember, this all assumes that your mother is otherwise eligible to adjust her status to lawful permanent resident. It may be wise to consult with an experienced immigration attorney to discuss your options.
Michael Shane and Evan Shane, Immigration Attorneys