Murthy Success Story: I-485 Motions Successful After Alleged Abandonment12 Feb 2010
In immigration cases, seemingly minor mishaps can create serious problems. We share with our MurthyDotCom and MurthyBulletin readers an example of such a situation. In this Murthy Law Firm success story, we were able to reopen adjustment of status (I-485) cases that previously had been denied for abandonment. The cause of the denials all stemmed from the failure to appear for the mandatory biometrics (fingerprinting) appointment.
We appreciate the generosity of these clients of the Murthy Law Firm for allowing their experiences to be shared our readers. All of our clients’ information is kept confidential and none is shared without explicit, written permission.
Background: Missed Fingerprint Appointments
The case came to the Murthy Law Firm after the U.S. Citizenship and Immigration Services (USCIS) denied I-485 applications belonging to the primary applicant and derivative spouse. The cases had been denied because the couple had failed to appear for mandatory biometrics (fingerprinting) appointments.
Requirement for Attending Biometrics Appointments
Many of our readers have undergone required biometric screening (fingerprinting) as part of the I-485 process. The USCIS uses the fingerprints to conduct background checks related to eligibility for adjustment of status. Fingerprinting is usually a routine matter. Applicants receive an official appointment notice in the mail, setting the date, time, and location for fingerprinting. However, since it is a required step, unless the appointment is rescheduled, failure to appear generally results in a denial of the I-485 application for abandonment. A similar situation was reported in our January 25, 2008 article, I-485 MTR Successful with Detailed Records.
Primary Applicant’s Appointment Notice Never Received
Fingerprint appointment notices are currently transmitted by ordinary U.S. mail. In this case, neither the primary applicant nor the previous attorney received the appointment notice in the mail. Thus, the failure to appear for fingerprinting was not due to the applicant’s abandonment of the case, and was not the fault of the applicant. The primary applicant had a strong argument that the USCIS should reverse its decision, reopen the I-485 application, and reissue a biometrics appointment notice.
The Murthy Law Firm filed a motion to reopen (MTR) the I-485 case, with proof that the USCIS failed to provide the applicant with proper notice, and that there was no abandonment of the I-485.
Spouse’s I-485 Situation More Difficult
While the primary applicant had a fairly straightforward case, the derivative spouse’s situation was more complicated. The previous attorney had received the fingerprint appointment notice, and had notified the spouse about the appointment. Unfortunately, there was not clear communication between the attorney and client. The derivative spouse understood neither the attorney’s directions nor the importance of this matter. The derivative spouse was experiencing a number of difficult and stressful life events around the time of the appointment. She could not focus on the fingerprinting matter, and did not follow up with the attorney for clarification of the meaning of the notice.
Favorable Discretion Requested for Spouse
Since the USCIS had provided notice of the appointment to the spouse, there was no mistake on their part. Given this, the denial was legally justified. This left the possibility that the primary applicant’s case could be reopened, but the spouse’s I-485 case denied. This would have left the spouse without a way to remain in the United States.
Given that the USCIS decision regarding the spouse’s case was legally correct, attorneys at the Murthy Law Firm had to ask the USCIS to exercise favorable discretion. This type of discretion is not permitted in all cases. That is, even if a case is sympathetic, the USCIS does not always have the power to say “yes” if technical, legal requirements are not met. It first had to be established by our attorneys that, in this type of case, the USCIS has discretionary authority to reverse the denial.
Once our firm established that the USCIS could reopen the case out of basic justice and fairness, we had to show that the applicant deserved such a favorable exercise of discretion. We were able to show that the country to which she would have had to return was dangerous, and that she would have been in a precarious situation. We were able to show that the positive, mitigating factors in our client’s case outweighed her mistake in failing to appear for the fingerprinting appointment.
Both I-485 Motions Successful
The Murthy Law Firm filed two MTRs; one for each spouse. Within two months, both cases were reopened. The USCIS issued new biometrics appointment notices, giving the applicants a second chance to have their fingerprints taken and continue to pursue their common goal of obtaining lawful permanent residence.
As regular MurthyDotCom and MurthyBulletin readers are already aware, the MTR can be an effective tool in the face of an erroneous USCIS denial decision. On occasion, there are situations in which there is no clear government error, but it may be possible to ask for a reversal of the decision based on discretionary factors. This discretion would not have been possible if the I-485 case itself was legally deficient. The request for discretion was limited to overlooking the failure to obtain fingerprints. Such requests are generally not appropriate when there are fundamental flaws in substance of the case. No one should expect the USCIS to overlook improperly filed or documented cases just because the denial will lead to problems for the applicants or their families. There are times, however, such as in this case, when it is possible to request a favorable exercise of discretion.
This case was completed by the Special Projects Department at the Murthy Law Firm. This department regularly handles unique or difficult cases, often on short notice. Although this case did not present particularly novel issues, we had to establish eligibility for an entirely discretionary approval. As with many of the cases we handle, the potential impact of the I-485 denials, even for as simple a matter as missing a fingerprinting appointment, would have been devastating for the family. We are proud to share with our readers another positive outcome for these clients of the Murthy Law Firm. We appreciate the USCIS’s willingness to reverse the earlier denial and issue a fair-minded and equitable decision to help this family to finally obtain their green cards.
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