The new rule which transfers jurisdiction to USCIS from IJ concerning arriving aliens (except those in removal, pending 485--> AP,--> out-->back -->denial of 485) on 485 applications took effect on May 12, 2006. The amendment is the result of increasing litigations challenging the old 245.1 by attorneys all over the US.
Although this rule has not been officialized yet, both USCIS and BIA have bagan to act upon it since May 2006. Federal regulation interim rule has stated the reason of appealing 245.1, the new rule and impact of the new rule in clear language.
If u r an AILA member, u would be informed in May 2006.
Attorneys who filed MOR to BIA to reopen a case for the sole/primary purpose of asking an IJ to adjudicate applicant's pending 485 or accepting 485 application in early of 2006 would know their cases were dismissed becaue the New 8CFR 245.1.
As for USCIS, a previously closed case due to lack of jurisdiction which the applicant's file was turned over to DHS for removal after an interview could be refiled on the same 140 under New 8CFR 245.1. USCIS has to adjudicate it. Lack of jurisdiction is no longer an execuse.
Immigration law is updated frequently and there are many interim rules would potentially alter the result of a pending case. Sometimes even an attorney may not be able to advise his/her client adequately.
For people who are in removal proceedings or whose final agency decision is "removable/deportable", the new regulation provides them a chance to argue the case before a DAO. However,the risk is that their luck is put in the hands of a DAO who has absolute discretion to either deny or grant the 485. Many DAOs, especially those who do not get the grips of the law but think that they know everything may deny the case on unlitigated grounds which has no law or precedents to follow. The result?, either a pending appeal if the applicant does it within 30-33 days by retaining an attorney after denial or applicant's file being turned over to DHS for removal. Someday, one of the cases will reach Feds and precedent would be set.
Increasing appeals are anticipated as a result of the new rule, but not with BIA but with USCIS for MORs.
Although this rule has not been officialized yet, both USCIS and BIA have bagan to act upon it since May 2006. Federal regulation interim rule has stated the reason of appealing 245.1, the new rule and impact of the new rule in clear language.
If u r an AILA member, u would be informed in May 2006.
Attorneys who filed MOR to BIA to reopen a case for the sole/primary purpose of asking an IJ to adjudicate applicant's pending 485 or accepting 485 application in early of 2006 would know their cases were dismissed becaue the New 8CFR 245.1.
As for USCIS, a previously closed case due to lack of jurisdiction which the applicant's file was turned over to DHS for removal after an interview could be refiled on the same 140 under New 8CFR 245.1. USCIS has to adjudicate it. Lack of jurisdiction is no longer an execuse.
Immigration law is updated frequently and there are many interim rules would potentially alter the result of a pending case. Sometimes even an attorney may not be able to advise his/her client adequately.
For people who are in removal proceedings or whose final agency decision is "removable/deportable", the new regulation provides them a chance to argue the case before a DAO. However,the risk is that their luck is put in the hands of a DAO who has absolute discretion to either deny or grant the 485. Many DAOs, especially those who do not get the grips of the law but think that they know everything may deny the case on unlitigated grounds which has no law or precedents to follow. The result?, either a pending appeal if the applicant does it within 30-33 days by retaining an attorney after denial or applicant's file being turned over to DHS for removal. Someday, one of the cases will reach Feds and precedent would be set.
Increasing appeals are anticipated as a result of the new rule, but not with BIA but with USCIS for MORs.
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