Initial Application (In Removal Proceedings)

Hello everyone,

Just wanted to share my experience so far with DACA.

App received - July 22, 2014
Biometrics (Walk-in) - September 2, 2014

I am currently in proceedings because of a denied I-485/I-130 petition by my wife who is a USC.
We appealed my case and it was re-opened but USCIS screwed me over by transferring my case to the Immigration Court even though my case has been re-opened. Now I have no other choice but to prove our case in court.

I applied DACA because my lawyer had told me that I might not be able to renew my EAD with USCIS since my I-485 is now in Immigration Court's jurisdiction. My EAD is based on a pending I-485.
So just to be on the safe side I applied for DACA so I can continue to be able to work in case my EAD based I-485 gets denied.

Does anyone here have gotten approved with DACA while in removal proceedings? Please share your story and timeline with me.

I was in removal proceedings before DACA was announced. I applied for DACA through USCIS (in August 2012). Once approved, I filed a motion to administratively close the removal proceedings. While ICE did not agree to a joint motion, they also did not oppose my motion. Consequently, the judge had no issue and closed my case.

Closing your case wouldn't help you if your ultimate goal is to adjust through your wife. You've been unclear whether the I-130 was approved and the I-485 denied, or both denied. What does your Notice to Appear say? Were you provided a reason by USCIS as to why your case was referred to immigration court?

Thanks for posting!

My I-485/I-130 has been very complicated.
If I check on the USCIS website my 485/130 shows they are still pending.
There was an official denial but we filed an appeal and it was re-opened and it still shows pending as of right now.
Unfortunately, USCIS had already put me in proceedings anyway so I have to go through IC to prove our marriage

NTA:
Visa Overstay
Denied I-485 (If you apply for any form of adjustment and it gets denied you will automatically be placed in proceedings if not appealed)

I mentioned that USCIS screwed me over because they should not have placed me in proceedings because my 485/130 were re-opened! =(

We filed a new 1-130 in July 2014 and once that gets approved that is when we can push for Administrative Closure with IC so that I can adjust my status with USCIS rather than in Immigration Court.
Our marriage is bona fide. We have been together for 8 years and been married for 4 years.

My only worry right now is getting my EAD renewed. My lawyer said that USCIS may deny my filed i-765 application for EAD because IC has jurisdiction over my EAD. That "i-765" is based on the I-485.

Why were you in proceedings?

I don't think you can get an EAD through your 130/485 since neither have been approved. Generally, the first step in adjusting through a spouse is is to get your 130 approved, which involves proving that your marriage is bona fide. Once that's done, the 485 allows you to adjust your status, which gives you the ability to get an EAD. Since both have been denied, I don't think you have a basis of getting an EAD there.

I don't know if USCIS really made a mistake by referring you to an immigration judge. Perhaps they just didn't believe the merits of your case and decided to refer you to an immigration judge. (Maybe the lawyer made a mistake?)

You can appear before the judge and argue for adjustment through your spouse. The judge can then ask USCIS to adjudicate the 130. If USCIS grants the 130, or in other words believes your marriage is bona fide, the judge can do one of two things: grant the 485 and allow you to adjust your status. Alternatively, the judge can terminate your case and let USCIS do the 485 adjustment as well. Of course, the judge could terminate the case at the very beginning and remand both the 130/485 to USCIS. I think the last option (remanding both 130/485 to USCIS) is the least likely since USCIS is the one who sent you to the judge in the first place. All this requires filing motions, the judge might do this without you filing papers, but generally it involves motions.

I don't entirely understand why USCIS sent you to immigration court...which limits the effect of what I've said above.

That's just what I think will happen, I'm not an attorney and my understanding of immigration law is limited.

I think filing for DACA in the interim might be a good option of getting an EAD. But I don't know how the 130/485 stuff with USCIS might slow, or further impact, your DACA application...

How's your recored?

@lawstudent
Thanks for your input. My lawyer said the same thing. They should have not turned my case over to IC.
But i'm past that. I just have to move forward from this. My only worry right now is my EAD is expiring in 01/2015. I need the DACA approved in 90 days! They received my app 07/22/2014; Biometrics done 09/02/2014.

My current lawyer as well as several lawyers i talked to said that my other pending cases will not affect my DACA application.
It is a total separate matter. They said that you can apply for any immigration benefit with USCIS as long as you qualify under them. But you are right, there is a good chance processing will be delayed because they have to go through all my files.
But that's better than getting denied! If people with juvenile record/final order of deportation get approvals i should be too right?

@ggalicia
My record is clean.
I prepared A LOT of evidence for DACA so i really hope i don't get a RFE.
Were you in removal proceedings as well? What was your timeline? Share away please!

Why was the I485 denied? If you appeal the denial and your case was re-open and transfer to Immigration Court, technically your I485 is still pending therefore you are eligible to renew your work permit by simply sending the receipt notice of your I485, 2 passport pics, copy of your current EAD and thats it.

The renewal of the work permit is free under category (c) (9)

Yes I did sent the renewal. I had nothing to lose anyway even if it was denied since I didn't have to pay for it.
I sent my i485, copy of current EAD and a print out of my I485's current case status taken from USCIS website.
They received it sept 22 2014. I walked in for biometrics on oct 2 2014.

Like i was explaining to the other members here who posted in this thread, my I485/I130 was re-opened before it was transferred to the Immigration Court. I even have a receipt saying that my case was re-opened after the denial.

I'm waiting for 2 EADs to be approved:

DACA (Nebraska Service Center):
received: July 22
Biometrics: Sept 2

I485 based EAD (National Benefits Center):
received: Sept 22
Biometrics: Oct 2

Why were you denied in the first place? Is it because they don't believe you have a bona fide marriage? Did you ever go to the marriage interview?

Yes we went to marriage interview. But at that time, 5 years ago, we did not have a lot of evidence together because we just started our married life. We were only able to show Bank statements (Less than 6 months when we opened the account) and pictures. The actual interview did not go very well as well. There were a couple questions they asked that we did not have the same answer. I guess my wife and I were overly confident when we went to the interview especially since we know to ourselves that the marriage is real.

When our case was re-opened. We were expecting for a stokes interview but never got it. So since my case got transferred to Immigration Court, we had no choice but to file a new I-130 to get another interview.