The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven, MS.  Originally from Russia, Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi.  She can be contacted via email at mbjorne@msn.com.

ZHICAY v. ASHCROFT, 3:05-CV-315, 2005 U.S. Dist. LEXIS 29699 (Dis. Con. 2005) holds that an alien who is physically present in the United States does not have to return to his country in order to apply for admission after deportation; habeas corpus petitions seeking review of final orders of removal can be filed directly with the Court of Appeals; the court can review final decisions by the USCIS based on pure questions of law.

Judge: DRONEY:

The Petitioner filed a petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, seeking review of her 1995 in abstentia deportation order and protection of her right to apply for adjustment of status and to reapply for admission after deportation. The Court transferred Petitioner's writ of habeas corpus seeking judicial review of her removal order to the United States Court of Appeals for the Second Circuit. The court granted petition to adjudicate her pending applications for permission to reapply for admission and for adjustment of status.

The Petitioner entered the United States unlawfully and two years later was placed into deportation proceedings and ordered deported in absentia. Petitioner never departed, got married, and eventually was taken into custody. Subsequently, her husband was granted LPR status.

The Petitioner’s habeas petition challenged in part the final order of deportation entered against her in 1995 on the ground of insufficient notice. The habeas petition also sought an order to afford the Petitioner a fair immigration proceedings and application for adjustment of status. The Petitioner had two pending applications with the USCIS: one for permission to reapply for admission after deportation through a Form I-212 ("I-212"), as required by 8 C.F.R. § 212.2, and another for adjustment of status through a Form I-485 ("I-485"), as required by 8 C.F.R. § 245.1.

The court transferred the portion of the Petitioner's case that challenges the Petitioner’s removal order to the Second Circuit Court of Appeals pursuant 8 U.S.C. §§ 1252(b)(2) and (b)(9), Pub. L. 109-13, 119 Stat. 311 (Real ID Act). The Court retained jurisdiction under the Real ID Act over habeas corpus petitions challenging physical custody and over Petitioner's habeas corpus petition seeking protection for her right to apply for immigration benefits by affording her fair immigration proceedings.

The court held that the Petitioner did not have to return to her country before filing her I-212 request for permission to reapply for admissibility. The court concluded that, under 8 C.F.R. § 212.2(e), Petitioner could seek permission to reapply for admission from within the United States. Additionally, under § 212.2(g)(2) since Petitioner was physically present in the United States but was ineligible to apply for adjustment of status, she should file the application with the district director having jurisdiction over her place of residence. 8 C.F.R. § 212(g)(2).

The Court declined to adjudicate the Petitioner's applications filed with the USCIS. See Succar v. Ashcroft, 394 F.3d 8, 25 n.22 (1st Cir. 2005). While the court could review the government's denial of an I-212 or I-485 if such denial was based on a purely legal, nondiscretionary reason, the court determined that Petitioner’s applications for permission to reapply for admission and for adjustment of status were not ripe for review because were still pending. The court ordered the USCIS to adjudicate Petitioner's applications in a timely fashion.

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BENSLIMANE v. GONZALES, No. 04-1339 (7^th Cir. 2005) holds that a motion for continuance may be judicially reviewable if it has effect of a substantive ruling on an application to adjust status.

Judges: POSNER, RIPPLE, ROVNER:

The Petitioner entered on a visitor’s visa and overstayed. In removal proceeding, the Petitioner admitted removability but claimed that he had married a U.S. citizen two months earlier and that she had filed a petition, Form I-130, requesting that he be given a visa as a legal resident of the United States. Concurrently with his wife’s I-130, the Petitioner filed an application for adjustment of status, Form I-485. The USCIS acknowledged the filing, and informed Petitioner that it would take 26 months for him to be granted an interview on the application.

At the removal hearing, the Immigration Judge noted that had Petitioner and his wife filed the visa petition and adjustment of status application forms jointly, he could have continued the removal proceeding until the visa petition was adjudicated. Even though the forms had been filed jointly, they had been placed on a different adjudicative track from the removal proceeding. The Immigration Judge ordered the Petitioner to re-submit his I-485 application to the court within 60 days.

Petitioner’s attorney mistakenly thought that I-485 could not be filed with the court until the I-130 had been adjudicated and requested a new continuance to await the adjudication of the visa petition I-130. The judge denied the request and ordered Petitioner removed, since adjustment of status was the only basis on which he was resisting removal. The BIA affirmed the IJ’s denial of the motion for a continuance and the resulting order of removal.

The court determined that while the denial of the Petitioner’s motion for a continuance was discretionary, it was nevertheless judicially reviewable because the denial of the motion had the effect of a substantive ruling on the application to adjust Petitioner’s status.

The court found that the BIA’s affirmation of the Immigration Judge’s denial was in effect an unjustifiable punishment for an attorney’s mistaken belief that the filing of the I-485 form would be premature, and therefore, arbitrary.

The Court vacated the order of removal and directed the BIA to stay removal pending the ruling on the visa petition and completion of the adjustment of status proceeding.