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The Law Office of Jayson DiMaria, Esq. Phone 973-934-5854 |
The
Respondent, a 33-year-old man entered the United States from Russia
in 1996 with a B1/B2 visitor visa with authorization to remain in
the United States for six months. Respondent eventually married a
United States Citizen. Respondent's spouse filed an I-130 Petition
for Alien Relative on behalf of Respondent and Respondent filed an
I-485 Adjustment of Status to that of a Lawful Permanent Resident of
the United States application with the United States Citizenship and
Immigration Services. Respondent and his spouse began having marital
difficulties and Respondent's spouse decided to stop petitioning for
Respondent. Before Respondent's Adjustment of Status Interview,
Respondent's spouse decided to withdraw the Petition for Alien
Relative that she filed on behalf of Respondent and Respondent
withdrew his application for Adjustment of Status. Being that the
Petition and Adjustment of Status Application were withdrawn,
Respondent was out of status and considered to be residing in the
United States illegally. Ultimately, the couple divorced.
Several years later, Respondent began dating again and got engaged
to his new United States Citizen girlfriend. While Respondent was
engaged, he was served with a Notice to Appear before the
Immigration Court in Manhattan, New York. The Department of Homeland
Security charged Respondent with being removable from the United
States for having remained in the United States illegally without
authorization by the U.S. Citizenship and Immigration Service. While
in removal proceedings, Respondent and his United States Citizen
fiance' got married. Respondent's spouse filed an I-130 Petition for
Alien Relative on behalf of Respondent and Respondent filed an I-485
Adjustment of Status Application. The trial attorney for the
Department of Homeland Security agreed to remand the case to the
U.S. Citizenship and Immigration Service so that an immigration
officer could make a determination as to whether or not Respondent
married his United States Citizen Spouse because he loved her or
whether Respondent was in violation of Immigration Laws for having
married his spouse simply to obtain lawful permanent residence in
the United States.
Attorney Jayson DiMaria accompanied Respondent and his spouse to the
interview. The immigration officer separated Respondent and his
spouse, and asked them each ten pages of questions in an effort to
determine if their marriage was bona fide (a marriage entered into
for love and not entered into in order to obtain immigration
benefits). The immigration officer determined that the marriage is
bona fide and approved the I-130 Petition for Alien Relative.
Attorney DiMaria then filed a motion to re-calendar the case for
trial so that the Immigration Judge could make a determination as to
whether Respondent was qualified to obtain Lawful Permanent
Residence in the United States. The case went to trial and the
Immigration Judge granted Respondent's Adjustment of Status
application. Respondent is now a Conditional Lawful Permanent
Permanent Resident of the United States.
Respondent is considered a Conditional Lawful Permanent Resident
because he and his spouse got married within two years of the date
in which Respondent obtained Lawful Permanent Residence in the
United States. In order to verify the validity of the marriage, U.S.
Citizenship and Immigration Services requires both Respondent and
his spouse to file an I-751 Application to Remove the Conditions on
Permanent Residence within 90 days of the two year anniversary of
Respondent having been granted Conditional Lawful Permanent
Residence. Once this application is approved, Respondent will obtain
his ten year Lawful Permanent Resident Card.
Respondent is no longer in Removal/Deportation Proceedings, and will
enjoy Lawful Permanent Resident status in the United States.
Immigration Court, Varick Street, New York City:
Jayson DiMaria successfully tried a case for Cancellation of Removal for Certain Lawful Permanent Residents in Immigration Court in Manhattan. The facts of the case are as follows:
The Respondent, a 38-year-old man who entered the United States from Belarus (Former Soviet Union), as a refugee 26 years ago, was detained by Immigration Service, and charged with being removable (deportable) from the United States, under the Immigration and Nationality Act (INA) § 237(a)(2)(B)(i) for “having been convicted of a violation of any law relating to a controlled substance”. As a defense to his charge of removability, Jayson DiMaria, Esq., prepared and submitted an Application for Cancellation of Removal for Certain Lawful Permanent Residents, under INA § 240(a).
INA § 240(a) (previously known as § 212(c) relief), authorizes Immigration Judges to “cancel the removal” of permanent residents, who are inadmissible or removable/deportable from the United States, if the alien: (1) has been an alien lawfully admitted for permanent residence for not less than five years, (2) has resided in the United States continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. In evaluating such applications, the Immigration Judges will look to issues of moral character, the basis of the charge of removability, family members in the United States, and will often weigh the positive against the negative equities.
In the case at hand, the Respondent had resided in the United States since 1980, and having been a lawful permanent resident since that time, had been arrested eight times. Of the eight arrests, four were convictions, all of which involved drug possession, (CDS possession), and all such convictions took place after 2001. Respondent's history of filing tax returns was somewhat sparse, and his employment history had been sporadic.
During trial, Jayson DiMaria was able to show that all four of Respondent's convictions occurred during a relatively short period in his life, after his parents had divorced, he had lost his employment, and his mother had been diagnosed with cancer. Moreover, as none of the CDS convictions involved distribution or intent to distribute, but rather involved possession for the sole purpose of personal consumption, the Immigration Judge found that the positive equities outweighed the negative equities, and granted Respondent's application.
Having been granted Cancellation of Removal, Respondent will now be released from custody by the Immigration Service. His alien Registration Card, (Green Card), will be returned to him, and he will continue to enjoy lawful permanent resident status in the United States.
Newark, New Jersey
Jayson DiMaria, successfully tried an application for Withholding of Removal for a alit woman from India, in Immigration Court.
In India, the lit class is considered to be society's “lowest of the low” and are commonly referred to as “untouchables”. They are relegated to sweeping the streets, cleaning toilets, and are paid almost nothing with no chance of improving their position within Indian society. As the caste system, which keeps the Dalits at the absolute bottom of Indian society is so deeply and firmly entrenched in India, the Indian Government can not and/or will not stop the severe oppression and even persecution leveled upon the “untouchables”.
In this case, the applicant, an elderly woman and member of India's Dalit class, having arrived in the U.S.A. As a tourist years ago and overstayed, was working as a nanny in an Indian family's home in New Jersey, when, due to near slavery conditions, she moved to another family's home. Upon her move, the first family repeatedly called the second home, threatening to have the woman deported if she did not return to work for them immediately. Shortly thereafter, Immigration and Customs Enforcement officers did in fact arrest the woman on her immigration violation and placed her into removal proceedings, correctly charging her as an overstay.
Although the woman did harbor a well-founded fear of persecution on the basis of her membership in a particular social group, (Dalit Class, or “untouchables”), having been in the United States for more than one year, she was time-barred from applying for political asylum.
However, after reviewing the facts of the woman's situation in depth, a determination was made that she may have a valid claim for Withholding of Removal from India. Although Withholding of Removal does not lead to lawful permanent residence, it would allow the woman to reside permanently in the United States with permission to work, and to travel, and is not subject to the one-year time-bar associated with political asylum applications.
For months, the case was developed, the situation facing members of the Dalit class in India was documented, and woman and her witnesses were prepared. Finally, the matter went to trial.
After a full and fair hearing on the merits, with testimony taken from the woman, members of the family with whom she now lives in New Jersey, and telephonic testimony taken from an individual in Denver, who had first-hand information about the woman's situation in India, the Immigration Judge granted her application.
Moreover, although the attorney from Immigration and Customs Enforcement, (ICE), strongly opposed the application initially, at the conclusion of the trial, he waived appeal, making the Immigration Judge's decision final.
We are extremely pleased to have been able to help this elderly woman avoid a life of poverty and oppression in India, as well as to avoid her having to work as a virtual slave for an abusive and opportunistic family in New Jersey, under the constant threat of being deported.
A Russian mother and son were granted adjustment of status this week in Newark, pending security checks, on the basis of self-petitions filed under The Violence Against Women’s Act, (“VAWA”).
VAWA was enacted to protect spouses of US Citizens and their children from abuse at the hands of their spouses. Specifically, many foreign people, who marry US Citizens are particularly vulnerable to physical and emotional abuse by their spouses. Often the alien spouse is beaten and abused under threat of being arrested deported should he or she go to the authorities.
In the case at hand a Russian mother and her teenage son were living in the United States, when she met, fell in love with, and married a United States citizen. As is often the pattern, during the courtship, the Citizen was charming, caring and loving. However, once the marriage took place, the Citizen husband became hostile, threatening and physically abusive to both his wife and her son. Both were terrified, and took no action until finally seeking legal counsel secretly.
After being informed of their rights, the next time the abusive spouse attacked them both, the mother called the police and was granted a temporary retraining order, which was later made permanent after a hearing in family court.
Then the mother and son filed “Special Immigrant Petitions” under VAWA, with the Immigration Service.
After proving that 1). She was in a bona fide marriage to a US Citizen; and 2). She and her son had been abused and or subject to extreme cruelty at the hands of the US Citizen, the “Battered Spouse Petition” was approved and the two filed for adjustment of status based upon that approval. Seven months later, the adjustment of status interview was conducted and they were approved pending the clearance of their security checks, which have been delayed in most cases.
The Violence Against Women’s act is often the only avenue available to alien spouses and children who are trapped in abusive relationships. Jayson DiMaria has also been successful in cases where men applied under the Violence Against Women's Act.