British Expats - I am now a USC, but still dealing with USCIS!

Quote:

Originally Posted by Rete

I remember the issue. I believe the son entered on a K-2; mom married before his 18th birthday; son was not adjudicated before he was 21 and CIS is now saying he can't be adjudicated based on the K-1 entry and AOS filing because the child protection act does not cover K-2 recipients.

However, I thought that it was a matter of filing for the appeal in a timely manner since there they had a contact at the CIS who was willing to act in their favor if they were to have the appeal in their hands within a certain timeframe. I take it that the OP's attorney was unable to meet this deadline. I don't recall that her posting exactly what had transpired so I was not aware that it might go to litigation until you mentioned it. Why would it go to litigation and not just before an IJ who will make the final decision. It would appear to be the most expedital means of resolving the issues.

Also as she is now a new citizen, why doesn't she just refile the I-130 and I-485 for her son and be done with it. That will be adjudicated long before any litigation would be if that were to occur.

Hi:

There is no appeal from denial of an adjustment. However, it CAN be "certified" to the AAO which has to come from the CIS. As an alternative, a denied adjustment can be "renewed" before an Immigration Judge IF the applicant in placed in removal proceedings before an IJ. However, ONLY the DHS can initiate those proceedings.

So, a denied adjustment which is not placed in removal proceedings CAN be the subject of "declatory relief" action in District Court. Of course, DHS can then "moot" the case by initiating removal proceedings -- the District Court case becomes "moot" because the required "exhaustion of administrative remedies" has been destroyed.

I have one district court case going here in California on the K-2 age out and we are still in the preliminary stages [AUSA just filed her "answer" and we are getting ready for status conference next month].

I have another case just filed in the 9th Circuit involving a different issue -- but if taken literally, the Board of Immigration Appeals ruled that a K-1 who marries the petitioner within the required 90 day period and files for adjustment of status is NOT, I repeat NOT, authorized to adjust status at all!