By Atty. Crispin Caday Lozano

Question: What can you do if the petition for your spouse is denied by USCIS?

Answer: You will receive a decision in the mail if your case is denied.  In that decision it will tell you the basis of the decision and your right to appeal.  The appeal must be filed within 30 days to the Board of Immigration.  It must be received within 30 days from the date of the decision.  Appeals must be mailed to the USCIS office that made the unfavorable decision and not to BIA directly.

Question: What form should I use on my appeal to BIA?

Answer: You should use EOIR 29 and pay the filing fee of $110.  Only the petitioner may appeal the decision.  If the petitioner is represented by an attorney, a signed EOIR 27 should be filed with the appeal.

Question: What is the scope of review by the BIA on denial of an I-130 petition by USCIS officers?

Answer: The BIA may review all questions of fact or law “de novo” or taking a new look on the case without taking into consideration the basis of the decision rendered by USCIS or DHS officers.  If an immigrant petition Form I-130 is denied, the BIA may look at the application of law to the existing facts as if the petition is newly submitted to them for a decision.

Question: What are examples of error in application of law?

Answer: There are statutes, procedures and case law that must be applied to the facts of the case.  If the precedent case law, statute or procedure is not followed then there is an error in the application of law.  Example is when the petitioner satisfied the burden of proof by preponderance of evidence and still the USCIS denied the petition against the weight of the evidence.

Question: What should an alien do so that the case will have a better chance of getting approved on appeal?

Answer: If there are documents that need to be submitted such as declarations, affidavits and joint documents, these should be submitted on appeal.  Cases on appeal are decided solely on the basis of the “record” in the case.

Note:    This is not a legal advice.

Immigration News

1. The Ninth Circuit Court decided that the death of U.S. citizen parent will not be a hindrance to seek waiver of misrepresentation.

2. On July 7, 2010, we received an approval of a late amnesty application under the extended filing deadline.

3. Arizona immigration law is just the start of States legislating on immigration.  It is time to work on your papers now.

4. On March 17, 2010 we received an approval in Immigration Court of adjustment of status for a conditional residence whose status was terminated before.

5. On January 5, 2010, we received an approval in Immigration Court of an adjustment of status based on good faith marriage despite an age difference of 18 years.

6. On Dec. 7, 2009, our client Ms. E was approved for a waiver of misrepresentation in the Immigration Court.  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.

Tip of the Week

1. Petitioner’s death is not a problem if the beneficiary is in the U.S. when the petitioner died and at the time of adjustment of status.

2. Abused spouse of U.S. citizen or permanent residents can self petition even if there is a problem with the entry documents.

3. Denied I-751 application to remove condition on residence may be renewed in Immigration Court.

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. Visit our website at www.loanmodificationsupport.org/