Federal Court Appeals, BIA, AAO, and other Appeals

Our client was denied adjustment of status by an Immigration Judge based on the finding that he was not statutorily eligible for adjustment of status. We appealed the Immigration Judge's decision. In February 2008, the Board of Immigration agreed with our argument and found our client was eligible to adjust status. The Board remanded the case to the Immigration Judge for consideration of the adjustment of status application on the merits. Scott Bratton handled the case for Margaret Wong & Associates

Our clients retained us to handle an appeal with the Sixth Circuit Court of Appeals.  Another attorney filed the Petition for Review and then we took over the case.  After we took over the case, the Government moved to dismiss the case under the fugitive disentitlement doctrine alleging our clients were fugitives for failing to report to ICE as requested.  The fugitive disentitlement doctrine precludes court review where a person is a fugitive.  We filed an extensive response arguing that the doctrine was not applicable to our case.  After consideration of our the briefs, the Sixth Circuit agreed with our position and refused to dismiss the case.  Scott Bratton represented our clients.

We were successfully able to secure a stay of removal with the Fifth Circuit Court of Appeals just two days prior to our client’s deportation date.  We had taken over the case from another attorney.  Our client is now eligible for release from DHS custody and can remain in the US while his case is pending.  Scott Bratton is working on this case.

In October 2006, our office was retained to file a mandamus action in federal court to compel CIS to issue a decision on our clients’ I-130 petition and the I-485 application.  Within 3 weeks of filing, the I-130 petition was approved and our client was granted adjustment of status.  Scott Bratton handled the case for Margaret Wong & Associates.

Our client handled Margaret Wong & Associates to file a lawsuit in federal court after his B-2 application and subsequent H-1B change of status request was denied by CIS.  CIS held that our client was inadmissible, which precluded his change of status request to a B-2.  CIS then found that since his B-2 was denied, his H-1B change of status request, which was filed while the B-2 application was pending, must also be denied since he was out of status.  We filed a Complaint in federal court in Lincoln, Nebraska arguing that the B-2 change of status request was erroneously denied.  We also argued that the H-1B change of status request was also erroneously denied since our client should have been considered in status at the time of filing.  Subsequent to filing the Complaint, CIS reversed its prior decisions and granted the B-2 change of status and the H-1B change of status request retroactively to reflect that our client has always maintained valid status in the US.  This put him back in valid status, allowing him to timely request an extension of his H-1B status and to pursue his green card.  Scott Bratton handled the case for Margaret Wong & Associates.

When our client retained Margaret Wong and Associates, her asylum claim had been denied by an immigration judge in California and the Board of Immigration Appeals.  We then filed a Petition for Review with the Ninth Circuit Court of Appeals.  On appeal, we argued that the Board and immigration judge failed to apply the proper legal standard for cases where the asylum applicant established past persecution.  Additionally, we argued that the Board and immigration judge erroneously concluded that our client was ineligible for asylum because she had firmly resettled in another country.  In making this finding, the Board and immigration judge erroneously applied an incorrect legal standard for firm resettlement.  In June 2006, the Ninth Circuit agreed with our arguments and granted the Petition for Review.  The case was remanded to the Board for further consideration in light of the Ninth Circuit’s decision.  Scott Bratton handled the case for Margaret Wong and Associates.  

An alien came from India in 1993 without inspection. In 2007, he, along with his family, was ordered to be removed in absentia for failure to appear at the hearings served to them. Later both husband and wife were taken into custody. It was then that our clients retained our services. Our attorney Scott Bratton, assisted by J.P Sarmiento, went to the Court and after talking to our clients got to know the true picture. Our client was actively involved in local politics in India. While he worked to help the community, he encountered people from opposition party who were after his life. He managed to escape the country and came to U.S. Later his wife joined him in 1997. They were served with notices from the Court but could not attend it, as they did not know English at that time. They asked a friend of theirs to translate for them but he dismissed it saying it was nothing important. Later their children also came in 2000 as their lives were in grave danger in their home country. Fully aware of the circumstances we decided to help them by filing a FOIA (Freedom of Information Act). FOIA is a right to public to information, and makes provisions for individuals to obtain information about their entire case. We received the documentation from FOIA in December 2007 and filed a 90 day custody review on behalf our client and his wife. Our first request was dismissed, but later our attorney proved that our client and his family had no criminal background and they were not even engaged in any activities jeopardizing the country's security. Finally, our request was accepted next time and they were out of jail in January 2008.Since our clients had already applied for their adjustment of status long ago, we had to file for their work authorization which was expiring soon. An I-765 was filed for our client and his wife in May 2008 and they had their fingerprints taken later. In June 2008 they got their work permits. We are hopeful that soon they will get their green cards and will live here peacefully with their daughters, who are getting good education here.

Our client was denied asylum by an Immigration Judge.  We filed an appeal and argued that the Judge’s decision was erroneous, especially with respect to her analysis of the credibility issue, which was central to the denial.  After considering our arguments, the Board of Immigration Appeals agreed and concluded that the credibility analysis was flawed.  Thus, our client’s case was sent back to the Immigration Judge for further consideration in light of the Board’s findings.  Scott Bratton handled the appeal.

When our client came to our office, she had just found out that her appeal of her asylum claim was denied by the Board of Immigration Appeals five months earlier.  She had never received a copy of the Board’s decision from her old attorney.  The problem was that she was unable to appeal the decision to the Third Circuit Court of Appeals because the 30 day period for filing an appeal had expired months before she found out her appeal was denied.  Our office filed a Motion to Reopen with the Board of Immigration Appeals asking that the Board reissue its decision so that our client could file an appeal with the federal appellate court.  In June 2006, the Motion was granted and the Board reissued its decision.  Our client can now appeal her asylum denial to the Third Circuit Court of Appeals and concurrently request employment authorization.  Scott Bratton handled the case for Margaret Wong and Associates.

Adjustment of Status Granted by Immigration Judge

When our client retained Margaret Wong and Associates, she was pursuing asylum with her parents and the case had been denied by the Board of Immigration Appeals. At the time, our client advised us that she had recently married a United States citizen. We filed an I-130 on her behalf and filed an appeal with the Sixth Circuit Court of Appeals. After the I-130 was filed, we also filed a Motion to Reopen based on the pending I-130 petition. The Motion was granted and the case was remanded to the Immigration Judge to await adjudication of the I-130. Subsequently, the I-130 petition was granted and we filed an adjustment of status application with the Immigration Judge. In February 2006, the Immigration Judge granted adjustment of status. Scott Bratton handled the case for Margaret Wong and Associates. 

When our clients asylum case was denied by the Board of Immigration Appeals, we filed a Petition for Review with the Ninth Circuit Court of Appeals.  The Board concluded that any persecution suffered by our client was not on account of political opinion and/or imputed political opinion.  In our brief, we argued that the Ninth Circuit improperly denied asylum and that there was a nexus between the persecution and our client’s political opinion and/or imputed political opinion.  After discussions with the Government attorney, we reached a settlement where the case would be remanded to the Board of Immigration Appeals for reconsideration of the asylum claim under the proper legal standard.  The Ninth Circuit then vacated the Board’s decision and remanded the case for further evaluation of our client’s asylum case.  Scott Bratton handled the case for Margaret Wong & Associates.

MARGARET WONG AND ASSOCIATES WINS PRECEDENT SETTING CASE AT THE BOARD OF IMMIGRATION APPEALS

On February 8, 2006, the Board of Immigration Appeals issued a precedent decision on the important issue of whether a criminal conviction that is vacated under Ohio Revised Code Section 2943.031 can still be used for immigration purposes. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). Ohio Revised Code Section 2943.031 requires Ohio state courts to advise a non-citizen criminal defendant that a criminal conviction may result in deportation, exclusion from admission to the United States, or denial of naturalization. The statute also gives the defendant the ability to vacate the criminal conviction where the advisement was not given. The Department of Homeland Security and many immigration judges had concluded that despite the fact the conviction was vacated under § 2943.031, it could still be used for immigration purposes.

In Matter of Adamiak, the Board held that a conviction that is vacated under R.C. § 2943.031 can no longer be used for immigration purposes. The holding means that our client’s conviction, which was vacated under R.C. § 2943.031, is no longer a valid conviction for immigration purposes. Thus, the vacated conviction could not be used to establish whether our client was subject to removal from the United States. It also could not be used to determine whether our client was eligible for cancellation of removal. This is an extremely important case that will impact many cases not just in Ohio, but in other states that have statutes similar to R.C. § 2943.031.

Scott Bratton and Margaret Wong handled the case.

In Hegyi v. Gonzales, the Sixth Circuit held that our client's case must be remanded to the Board of Immigration Appeals because the Board failed to properly consider the argument that our client did not overstay her voluntary departure. The Sixth Circuit held that we made a strong argument that our client did not overstay her period of voluntary departure. If she did not overstay her voluntary departure, she would be eligible for adjustment of status. The case was sent back to the Board for consideration of our argument. Scott Bratton handled the case at the Sixth Circuit Court of Appeals.

After his case was denied by the Board of Immigration Appeals, our client retained us to file an appeal with the Sixth Circuit Court of Appeals. In his appeal, we challenged the Immigration Judge's adverse credibility finding that served as the basis for the denial of his asylum claim. The Sixth Circuit agreed with our argument that the Judge's adverse credibility finding was not supported by substantial evidence and vacated the Judge's and BIA's decision denying asylum. Scott Bratton handled this case for Margaret Wong & Associates.

Our client hired our office to appeal the denial of a motion to reopen with the Second Circuit Court of Appeals. The basis for the motion was that our client wanted to apply for relief under the Convention Against Torture (CAT). In his Second Circuit appeal, we argued that the Board's decision was inadequate as the Board failed to apply the proper standard for reopening under CAT and that although our client's asylum claim was denied years earlier, he was still eligible for relief under CAT. The Second Circuit agreed and remanded the case to the Board for further consideration of the motion to reopen, We then filed a detailed brief with the Board arguing that reopening was appropriate. The Board reconsidered its earlier denial and reopened the case. When the reopened case came back before the Immigration Judge, our client was able to apply for adjustment of status as he was married to a US citizen and had an approved he I-130. He could not have previously moved to reopen on this ground as the 90-day time limit for motions to reopen had long passed when the I-130 was approved. After hearing evidence of the adjustment of status application, our client's adjustment of status application was approved and he is now a lawful permanent resident of the United States. Scott Bratton handled the case from the Second Circuit forward except that Troy Murphy represented our client at the adjustment of status hearing.

Win in the Seventh Circuit Court of Appeals - Iao v. Gonzales, 04-1700, 2005 WL 545278 On March 9, 2005, the Seventh Circuit, in a published opinion, granted our client’s Petition for Review and remanded the case for further proceedings consistent with its opinion. Our client is a native and citizen of the People’s Republic of China. She applied for asylum based on her fear of returning to China due to her participation in the Falun Gong spiritual movement. She testified that she was targeted by authorities due to her participation in Falun Gong. After hearing evidence on her asylum claim, the Immigration Judge denied her asylum application, giving five grounds for his denial. The Board of Immigration Appeals affirmed the decision of the Immigration Judge without issuing a separate opinion. Our firm was retained after the Board’s denial of her appeal. We filed a Petition for Review with the Seventh Circuit Court of Appeals. In the brief, we argued that the decision of the Immigration Judge was unreasoned and unsupported by the evidence. The five stated reasons for the denial were not supported by the evidence. The Seventh Circuit agreed with our analysis of the case and remanded the case back to the Board for a rational analysis of the evidence. The Seventh Circuit addressed each of the five stated grounds for the denial of asylum and agreed that they did not constitute a proper basis to deny asylum. The Court stated that if our client practiced Falun Gong, as she testified she did, or if she attempted to practice it upon her return to China, she would face a substantial likelihood of persecution. Based on the unreasoned decision of the Immigration Judge, the Seventh Circuit remanded the case for further proceedings in light of its opinion. Scott Bratton represented our client in her appeal to the Seventh Circuit Court of Appeals. Second Circuit Court of Appeals vacates the decision of the Board of Immigration Appeals and the Immigration Judge and remands the case for a new asylum hearing – Braho v. Gonzales, No. 02-4689 On February 26, 2005, the Second Circuit Court of Appeals granted our client’s Petition for Review and sent the case back to the Immigration Judge for a new hearing on his asylum case. Our client, a native and citizen of Albania, applied for asylum before the Immigration Judge in New York, New York. The Judge denied asylum and the Board of Immigration Appeals affirmed the decision of the Immigration Judge. After the Board of Immigration Appeals issued its decision, Margaret Wong & Associates was retained to handle the appeal to the Second Circuit Court of Appeals. On appeal, we challenged numerous aspects of the Immigration Judge’s decision. The Judge failed to adequately consider and weigh the evidence. This deprived our client of a full and fair asylum hearing. In light of the Second Circuit’s decision, the prior decisions of the Immigration Judge and BIA were vacated entirely and the case was remanded for a new hearing and proper consideration of our client’s evidence in support of his asylum claim. Scott Bratton handled the case for Margaret Wong and Associates.

After his appeal was denied by the Board of Immigration Appeals, our client came to our Margaret Wong & Associates to assess his options. We discovered that he had a prior I-140 approval as an alien of extraordinary ability. We filed both a Petition for Review with the Sixth Circuit Court of Appeals and a Motion to Reopen based on the approved I-140. The case was reopened by the Board and sent back to the Immigration Judge for an adjustment of status hearing. The Immigration Judge granted adjustment of status.

In an update to a prior posting, we had previously obtained a remand from the Second Circuit Court of Appeals for reconsideration of a Motion to Reopen to apply for relied under the Convention Against Torture. The Board agreed to reopen the case finding that contrary to its earlier ruling, our client was prima facie eligible for relief under Article 3 of the Convention Against Torture. The case was remanded to the Immigration Judge. Our client is married to a U.S. citizen and is the beneficiary of an approved I-130 visa petition. He is now applying for adjustment of status before the Immigration Judge. Scott Bratton represented our client in all proceedings starting with the Second Circuit appeal.

The Seventh Circuit Court of Appeals grants Petition for Review and Remands case because the decision denying asylum was unreasoned. In Guchshenkov v. Ashcroft, No. 03-1392 (7th Cir. April 29, 2004), the United States Court of Appeals granted Guchshenkov's Petition for Review and remanded the case because the decision denying asylum was unreasoned and not supported by substantial evidence. Our client, who hired us after his appeal was denied by the Board of Immigration Appeals, filed a Petition for Review with the Seventh Circuit in which we argued that the Immigration Judge and Board improperly denied his asylum claim. The Seventh Circuit found that the reasons given by the Immigration Judge and Board in denying the asylum claim were not supported by the evidence. The order of removal was vacated and the cases returned to the Immigration Court for further proceedings. The Court also urged that the case be reassigned to another immigration judge due to the "striking inadequacy of the analysis" by the judge who handled the case initially.

Eight District Court of Appeals holds that the trial court erroneously denied Appellant's motion to withdraw his guilty plea without conducting an evidentiary hearing*

In State v. Creary, No. 82767 ( Ohio 8th Dist. 2004), the Eighth District Court of Appeals held that the trial court erroneously denied Creary's motion to withdraw his guilty plea without conducting an evidentiary hearing. In his motion, Creary argued that he should be permitted to withdraw his plea due to ineffective assistance of counsel. He claimed that his lawyer misinformed him of the immigration consequences of his guilty plea. Although the Court fully advised Creary of the immigration consequences of his guilty plea pursuant to R.C. § 2943.031, the Eighth District held that a hearing was required because Creary credibly alleged that he was misadvised by counsel about the immigration consequences of his plea and that he would not have pleaded guilty absent the misinformation. Accordingly, the case was remanded for an evidentiary hearing on Creary's motion. Scott Bratton represented

*The State of Ohio filed a Notice of Appeal with the Ohio Supreme Court asking the Court to accept the case for review. Our office filed a response arguing that the case was not appropriate for review by the Ohio Supreme Court. In August 2004, the Ohio Supreme Court declined to exercise jurisdiction. Therefore, the decision of the Eighth District stands and Creary will get an evidentiary hearing on his claim.

Sixth Circuit holds that a stay of voluntary departure can be granted by a federal appellate court pending adjudication of a petition for review

In an issue of first impression in the Sixth Circuit, the Court of Appeals held that it is authority to grant a stay of voluntary departure pending adjudication of a Petition for Review. Nwakanma v. Ashcroft, No. 03-4317, 2003 FED App. 0436P (6th Cir. 2003). The Government opposed a stay of voluntary departure, arguing that the Sixth Circuit lacked jurisdiction to issue a stay. T he Sixth Circuit disagreed and held that a grant of a stay of voluntary departure will be reviewed under the same standard as a stay of removal. The Court then granted the request for a stay of removal and a stay of voluntary departure pending adjudication of the Petition for Review. Attorney Scott Bratton represented Nwakanma.

The United States District Court for the Northern District of Ohio held the Board of Immigration Appeals erroneously concluded that our client was ineligible for cancellation of removal due to a conviction for an aggravated felony. Liao v. Rabbett, 1:03CV1166 (N.D. Ohio 2003) The District Court found that our client's drug possession conviction, which was a fifth-degree felony under Ohio law, was not an aggravated felony. Thus, the District Court found that our client was eligible to apply for cancellation of removal.