On Monday, July 17, 2012 we successfully convinced ICE to release an Kosovar national from detention who had been ordered removed (deported) back in 2002. As a special treat, we asked for his removal to be stayed for 1 year, and ICE gave us 2 years!
The client was born in the former Yugoslavia, but today is a national of Kosovo. He entered the United States on a fake passport 12 years ago and claimed he was afraid to go back due to activities that placed him in danger during the Kosovo War. He was found credible, but remained in detention for several months. Eventually, he was released to pursue his asylum claim.
Two years later, he lost his asylum case and was ordered removed. He tried to appeal, but lost. Unfortunately for him, his attorneys mismanaged his case and his primary lawyer was disbarred a few months after the loss. Several years later, he tried to reopen his case, but that was denied, too. He eventually married a US citizen, had two children, and worked. Last month, while aboard a train, ICE agents came on board and took him. Our initial request for humanitarian release was denied by ICE; the officer told us that no matter what we filed, he would deny any request to stay removal and moreover, since our client had a new Kosovar passport, he would be back deported within a couple of weeks.
In 2005 and 2006, there were a number of lawsuits filed around the meaning of the word "parole." When an alien wants to apply for a green card, say based on marriage, they have to show that they entered the United States in a legal way. This means either "admitted" (ie, with a visa) or "paroled" (without a visa, but allowed to physically enter the US on some other basis; in this case, it was to allow him to pursue his asylum claim.)
None of the previous attorneys thought to look at the fact that even though our client entered using a fake passport, eventually INS released him. When they did that, they gave him an I-94 card (arrival/departure card) and stamped it showing that he was paroled into the United States under INA 212(d)(5) for purposes of pursuing his asylum claim. Hidden at the bottom of a stack of papers, nearly forgotten now nearly twelve years later, was the yellowed, frayed I-94 card INS had given our client.
That I-94 card was the key to victory. Because it showed that he was paroled into the United States under §212(d)(5) he remained eligible to adjust status (file for a green card) as an arriving alien under INA §245(a). See, e.g., Scheerer v. Attorney General, 445 F.3d 1311 (11th Cir. 2006) The authority to allow him to do this was implemented by a USCIS memo in the wake of multi-circuit litigation surrounding the eligibility of parolees (as a class) to pursue same. See 71 Fed. Reg. 27585 (May 12, 2006) The Department of Homeland Security recognized that parolees – even with final orders of removal – are allowed to pursue adjustment of status within the US as arriving aliens. See Matter of C—H--, 9 I&N Dec. 265, 266 (Regional Commissioner 1961).
Our client was married to a US citizen. We filed an I-246 request for a stay of deportation and deferred action with ICE. At first, the ICE officer was unsure of how to handle this case, but once we explained the law to him, and he verified it with ICE lawyers, he called us and asked to speak to the US citizen wife. We gladly passed on her number. Convinced that the marriage was real, our client was released from detention the very next day.
He is now back home with his family, ready to file for his green card. Here is the story of a hardworking immigrant who unfortunately found the wrong help, but due to a technicality, a small (but significant) change in the law, found a way to become legal in the US for the first time in 12 years - even though he has an order of deportation.