Termination of Conditional Resident Status letter received

[Markys]

Hi I've posted on another forum so bear with me if have answered my question already.
I received the letter on Friday June 23rd 2017
It states my eligibility to have the conditions removed have been denied.
The reason stated was because my wife wrote to Uscis in Feb last year saying that she wanted to withdraw her support (we were going thru a rocky patch but things are great now, we're still married and living together.) She wrote back 6 weeks later wanting to rescind her withdrawal not realizing that it could not be rescinded.
My green card was issued in Oct 2013 and expired Oct 2015. We've been waiting for the Uscis since Sept 2015 when we filed form I-751 to have the conditions removed.
We went to an interview 3 weeks ago, there she provided a sworn testimony that she wanted to rescind her withdrawal. We have not received a court order yet.
Any help and advice is greatly appreciated.

[inadmissible]

Apply for adjustment of status

[newacct]

Hi I've posted on another forum so bear with me if have answered my question already.
I received the letter on Friday June 23rd 2017
It states my eligibility to have the conditions removed have been denied.
The reason stated was because my wife wrote to Uscis in Feb last year saying that she wanted to withdraw her support (we were going thru a rocky patch but things are great now, we're still married and living together.) She wrote back 6 weeks later wanting to rescind her withdrawal not realizing that it could not be rescinded.
My green card was issued in Oct 2013 and expired Oct 2015. We've been waiting for the Uscis since Sept 2015 when we filed form I-751 to have the conditions removed.
We went to an interview 3 weeks ago, there she provided a sworn testimony that she wanted to rescind her withdrawal. We have not received a court order yet.
Any help and advice is greatly appreciated.

You can argue to the immigration judge that it was denied incorrectly if and when you are put into removal proceedings.

[Markys]

I've arranged a consultation with an Immigration specialist attorney. I'll let you know what she says next week.

[inadmissible]

I believe the immigration judge can not overturn USCIS's denial of your removal of conditions, it is not within his jurisdiction

The AAO will hear your appeal, if you choose to file one, and then the BIA will hear your appeal of a negative AAO decision

If the immigration judge is sympathetic to your situation, he will grant you adjustment of status as a form of relief from deportation

You can get a headstart on the process now by applying for adjustment of status yourself through USCIS

[newacct]

I believe the immigration judge can not overturn USCIS's denial of your removal of conditions, it is not within his jurisdiction

The AAO will hear your appeal, if you choose to file one, and then the BIA will hear your appeal of a negative AAO decision

If the immigration judge is sympathetic to your situation, he will grant you adjustment of status as a form of relief from deportation

You can get a headstart on the process now by applying for adjustment of status yourself through USCIS

The immigration judge in removal proceedings does have jurisdiction to review a denial of Removal of Conditions, both in joint petition cases , "No appeal shall lie from the decision of the director; however, the alien may seek review of the decision in removal proceedings.") and waiver cases "No appeal shall lie from the decision of the director; however, the alien may seek review of such decision in removal proceedings."). See also "Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien."

There is no "appeal" for I-751, although they could submit a motion to reopen with I-290B, based on new evidence, which may be applicable in this case. See this page for whether appeals or motions are applicable for each type of application. Note 5 on that page says "Conditional residents placed in removal proceedings when their Form I-751 or Form I-829 is denied may seek to have an immigration judge review the denial. This review would occur during the removal proceedings."

I am not sure they can apply for Adjustment of Status, and bars anyone admitted as a conditional permanent resident from Adjustment of Status.

[S_R_E]

I am not sure they can apply for Adjustment of Status, bars anyone admitted as a conditional permanent resident from Adjustment of Status.

Would this depend on whether or not they had left the country and been re-admitted when they held the status of a conditional permanent resident and therefore last entered with the status of conditional permanent resident? If they had never left the country since entering‚ then would they have still be able to apply for AOS having entered as visitor?

[newacct]

Would this depend on whether or not they had left the country and been re-admitted when they held the status of a conditional permanent resident and therefore last entered with the status of conditional permanent resident? If they had never left the country since entering‚ then would they have still be able to apply for AOS having entered as visitor?

No because Adjustment of Status is also considered admitted as a permanent resident. Basically, any method of becoming a permanent resident counts as being admitted as a permanent resident.

[S_R_E]

No because Adjustment of Status is also considered admitted as a permanent resident. Basically, any method of becoming a permanent resident counts as being admitted as a permanent resident.

I'm confused about this.

I entered the US on a B2 visa in 1988 and started the AOS process in 1989 - my wife of the time and I completed the interview and I received a stamp in my passport and had my tourist visa (lifetime multiple re-entry) cancelled in my passport. We separated soon after the interview and never completed the process

Fast forward to this year‚*we applied for AOS through my current marriage to my USC wife in January and completed the process in June where I was granted a 10 year Green Card. I never left the states since my initial entry in 1988

[newacct]

I'm confused about this.

I entered the US on a B2 visa in 1988 and started the AOS process in 1989 - my wife of the time and I completed the interview and I received a stamp in my passport and had my tourist visa (lifetime multiple re-entry) cancelled in my passport. We separated soon after the interview and never completed the process

Fast forward to this year‚*we applied for AOS through my current marriage to my USC wife in January and completed the process in June where I was granted a 10 year Green Card. I never left the states since my initial entry in 1988

"admitted for permanent residence" is just a legal term meaning you got permanent residence. It doesn't matter how you got it or when you entered.

[S_R_E]

"admitted for permanent residence" is just a legal term meaning you got permanent residence. It doesn't matter how you got it or when you entered.

I'm still a little confused because earlier you said

I am not sure they can apply for Adjustment of Status, and bars anyone admitted as a conditional permanent resident from Adjustment of Status.


As I said I applied in 1989‚ was granted conditional permanent resident status‚*never completed the process due to divorce and then successfully applied for AOS this year resulting in LPR status with a 10 year green card. I understand that at the time I was obviously out of status‚*I assumed that my status when last entering the US would have been B2 visitor and filed accordingly. I obviously included all the details of my previous case including photocopies of my passport and immigration stamps and included my Alien Registration # and SSN (both of which remained unchanged throughout the process)

[newacct]

Hmm I did some more research and it seems that the current interpretation is that the prohibition against Adjustment of Status no longer applies after USCIS has "terminated" the person's conditional permanent resident status. See AFM chapter 25.1(d) (scroll down to section "(d) Ineligibility for Adjustment of Status"). So I guess the OP can technically apply for Adjustment of Status. However, it still makes no sense for them to file for AOS rather than get the ROC approved in this case, because what they need for the ROC is to show that the marriage was bona fide (the burden is actually upon USCIS to show that the marriage is not bona fide when they challenge the decision in removal proceedings), and they would also have to show that the marriage was bona fide to do AOS anyway. Plus the denial is likely a clerical mistake due to confusion over the withdrawal by the spouse and attempt to rescind the withdrawal, and not on the merits of the ROC application, so maybe a motion to reopen and/or reconsider would be sufficient.

[S_R_E]

Hmm I did some more research and it seems that the current interpretation is that the prohibition against Adjustment of Status no longer applies after USCIS has "terminated" the person's conditional permanent resident status. See AFM chapter 25.1(d) (scroll down to section "(d) Ineligibility for Adjustment of Status"). So I guess the OP can technically apply for Adjustment of Status. However, it still makes no sense for them to file for AOS rather than get the ROC approved in this case, because what they need for the ROC is to show that the marriage was bona fide (the burden is actually upon USCIS to show that the marriage is not bona fide when they challenge the decision in removal proceedings), and they would also have to show that the marriage was bona fide to do AOS anyway. Plus the denial is likely a clerical mistake due to confusion over the withdrawal by the spouse and attempt to rescind the withdrawal, and not on the merits of the ROC application, so maybe a motion to reopen and/or reconsider would be sufficient.

Thank you for looking that up‚ that makes sense now in relation to myself. I appreciate your work and thoughtful responses on these forums

[Markys]

Just a quick update I've consulted with an Immigration specialist attorney we are going to file again from the start the I 130.