MTR vs. Appeal

[milliesmom]

I'm sure many of you remember my friend Flo's case. Well, things have been going rather slow. On their denial it said that they had 30 days to submit an appeal. Is that the same for a motion to reconsider? She got advice from an attorney to start ALL over again with the I-130. What do you all think?

[milliesmom]

Hmm...anyone?

[Pinkpig]

Milliesmom,

I remember that your friend is deaf, but I cannot remember why she was denied, was it that hardship was not proven or was there another circumstance?

[milliesmom]

Her husband was denied because of "suspicion" of being a drug trafficker. This was at the initial interview. They were not given a chance to file a waiver - ever.

[Pinkpig]

Her husband was denied because of "suspicion" of being a drug trafficker. This was at the initial interview. They were not given a chance to file a waiver - ever.
Oh, yes, I remember now. I am so sorry.

I guess that any lawyer that told me that would have to have a very strong reason for why he thought I could overcome the "suspicion." I would want to see his strategy and what legal cases he planned to use to prove the point. I don't see where you have the opportunity to address their false charges.

He would have to show me how I was going to prove to the CO why I was not a drug dealer. I would think it would take moving mountains to overcome that charge.

[JMRJ]

I'm sure many of you remember my friend Flo's case. Well, things have been going rather slow. On their denial it said that they had 30 days to submit an appeal. Is that the same for a motion to reconsider? She got advice from an attorney to start ALL over again with the I-130. What do you all think?

MTR and Appeal have something in common. The Form I-290B is required and the accompanying fee. They both may be accompanied by a brief.

MTR is submitted to the official who made the unfavorable decision. It is automatically converted into an appeal if the office denies the Motion.

If the reviewing official will not be taking favorable action or decides favorable action is not warranted, the official will forward the appeal and the relating records of the case to the AAU in Washington, DC. The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations.

That's how far I can go pertaining to MTR and appeal, Julie.

[milliesmom]

My former attorney advised Flo to get an explanation from the San Francisco DA explaining why her husband was never charged. (He was arrested for supposedly dealing drugs, but charges were never brought against him.) He was arrested, jailed and released. So the slim, slim slim hope is that somehow if Flo can get an explanation of why the charges were dismissed (no evidence.. Evidence collected was not a drug, etc) and the CO will Reconsider his decision.

Did I explain myself right? I am multitasking as I type.

[Pinkpig]

My former attorney advised Flo to get an explanation from the San Francisco DA explaining why her husband was never charged. (He was arrested for supposedly dealing drugs, but charges were never brought against him.) He was arrested, jailed and released. So the slim, slim slim hope is that somehow if Flo can get an explanation of why the charges were dismissed (no evidence.. Evidence collected was not a drug, etc) and the CO will Reconsider his decision.

Did I explain myself right? I am multitasking as I type.

Yes, Milliesmom, I totally understand. Here's the thing though...if they just suspect that he was into drugs that is good enough for them to deny him. I can understand your friend wanting to try if there was any chance. I would just want a strategy outlined as to how it would work. The lawyer would have to give me some specifics and some evidence that this might work.

On the other hand the young couple that were denied because the CO in CDJ erroneously thought that they were already married, got a second interview, proved their case, and got the decision overturned.

So, they do sometimes make mistakes but you have to prove them wrong to get it overcome. I would have to buy in to the attorneys plan to overcome the charge.

[klaudialaw]

to JMRJ: I was wondering myself. What if the MTR gets denied and as you say converts automatically to an appeal, can I the petitioner or husband be able to give up the appeal in other words make a request to stop the appeal so to speak to accept the denial and refile all over again?

[Pinkpig]

to JMRJ: I was wondering myself. What if the MTR gets denied and as you say converts automatically to an appeal, can I the petitioner or husband be able to give up the appeal in other words make a request to stop the appeal so to speak to accept the denial and refile all over again?

Yes, members of the forum going through CDJ and also Lima have done just that. Laurel has addressed it in one of her chats also. while the appeal is pending, they filed for a new appt. before they went to the new appt. they requested that the appeal be withdrawn.

[klaudialaw]

that's good then can you actually post that part of laurel's chat addressing this issue?
If you can

[JMRJ]

that's good then can you actually post that part of laurel's chat addressing this issue?
If you can
It's here, klaudia:

Mendoza: For those who did an appeal after denial in CDJ (I know they shouldn't have, but if they did) and they request a new appointment and get one, do they have to withdraw the appeal in order to submit a new I-601?

Laurel: According to some statements Warren and Mr. B made to AILA, you should be able to get a new interview without withdrawing the appeal. I think their statements are unclear on whether you have to withdraw the appeal before the actual I-601 filing, but their statements suggest that you don't. This is just for CDJ. At other locations, they make you prove that you've withdrawn your appeal.
http://immigrate2us.net/forum/showthread.php?t=2045


I know member christytorres succesfully asked for a new interview while she had an appeal pending....

[Pinkpig]

Thanks, JMRJ, I still have not gotten through the first round this morning.

Klaudia,

In addition to CDJ members,

I know that Palinurus filing through Lima also had her appeal withdrawn. She had to have an official letter of withdrawal before they would give her the date for the new interview appt. Laurel Scott was her lawyer for the appeal. Hers was eventually approved but she and her husband decided to abandon the process and did not pick up the visa.

Yours is an in-country, no?

[milliesmom]

Yes, Milliesmom, I totally understand. Here's the thing though...if they just suspect that he was into drugs that is good enough for them to deny him. I can understand your friend wanting to try if there was any chance. I would just want a strategy outlined as to how it would work. The lawyer would have to give me some specifics and some evidence that this might work.

On the other hand the young couple that were denied because the CO in CDJ erroneously thought that they were already married, got a second interview, proved their case, and got the decision overturned.



Thanks, pinkpig. Like I said before it's a slim to none chance that the CO will change his mind. But it's a chance nonetheless. Flo has faxed a letter to Warren Janssen asking for another opportunity. I hope they respond soon. But I don't know if they will or if it has to be within the first 30 days and accompanied by some form. Does it necessarily have to come from a lawyer?

[Pinkpig]

Thanks, pinkpig. Like I said before it's a slim to none chance that the CO will change his mind. But it's a chance nonetheless. Flo has faxed a letter to Warren Janssen asking for another opportunity. I hope they respond soon. But I don't know if they will or if it has to be within the first 30 days and accompanied by some form. Does it necessarily have to come from a lawyer?


Milliesmom, I don't think Warren is the one to contact. You said that she was ineligible to file the waiver. That decision is made by the Department of State - Mr. Burciaga. The Department of Homeland Security is Warren's department - They decide whether your waiver is approvable or not.

You said that he was denied the ability to file the waiver at the first consular interview, right?

Several members have been able to convince Mr. Burciaga's office to give them another chance. It does not have to be from a lawyer. I think it has to be in the 30 days.

But, I am not sure if he can get another interview on the original 1-130, have they closed the case?

But, I am sure that Mr. Burciaga's office is the correct office to contact.

Good Luck!

[y14gemini]

Hey milliesmom, I just wanted to wish your friend luck!!

[milliesmom]

I spoke to Laurel again today (she's so wonderful to call me)and basically said it's a mute point to try to get another interview because the CO didn't make a mistake. The law is on his side. With immigration, the petitionee does NOT have a right to a fair trial and is NOT innocent before proven guilty. They are not covered by any constitutional rights. grrrrrr. Oh well...I emailed my friend.

Thanks for the clarification, pink. I wasn't sure who would determine whether they'd be able to file a waiver or not. We'll try to fax Burciaga anyway. Even if Flo gets the bad news again. She needs to see it in English because they only checked off stuff in Spanish.

[latacunga]

Yes, members of the forum going through CDJ and also Lima have done just that. Laurel has addressed it in one of her chats also. while the appeal is pending, they filed for a new appt. before they went to the new appt. they requested that the appeal be withdrawn.

Pinkpig,
Do you have to withdraw an appeal before re-filing?

[Pinkpig]

Pinkpig,
Do you have to withdraw an appeal before re-filing?

Yes, that is correct. You have to withdraw an appeal before re-filing. You cannot have two different filings at the same time. You need to do the withdrawal in enough time for it to get into the system/or have official documentation attesting to the fact that you have withdrawn the appeal before you can file the new waiver.