Our office took on the case of an alien who had been ordered deported many years ago. She was unaware of this fact because she came with her parents as a small child and her parents filed an asylum application with her as a rider, or derivative asylee, and their case had finished with a final order of deportation.
She went to public schools, had a social security card, in fact obtained a scholarship to attend a public university. Her parents never informed her of their immigration proceedings. She went on to marry a U.S. service member in the Air Force and was living on the base in Northern California.
She went back to visit her family in the Mid-West and while she was there, ICE raided the family home with arrest warrants for the entire family. Everyone was deported to their native country except her, because she was with her USC husband and step-daughter. This is how the case was presented to our office, final order of removal, in custody, and all appeals had been exhausted.
We filed a motion to reopen with the BIA, asking the Board to reopen so that she could file her own I-589 asylum application and alternatively, so that she could adjust her status based upon her marriage to a USC.
The legal basis for this motion was to permit an aged-out asylee to file an initial asylum application on her own behalf, pursuant to 8 C.F.R. § 208.14(f):
The denial of an asylum application filed by a principal applicant for asylum shall also result in the denial of asylum status to any dependants of the principal applicant who are included in that same application. Such denial shall not preclude a grant of asylum for an otherwise eligible dependant who has filed a separate asylum application.
Much to my surprise and amazement, the Board just granted our motion, over DHS objection, and remanded back to the Immigration Court so that she could adjust her status.
Maybe the tide is beginning to turn in the recent and continuing relentless push to deport everyone out of status.
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