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Win Your Case With A Decision That Is Not In The Books

by Carl Shusterman

Imagine that your future immigration status depended on a case or law that could not be found in any book or treatise. Unless you could find an attorney who knew about this case or law somewhere in the back of his brain, an Immigration Judge would order you to leave the U.S.

Does this sound a bit farfetched? It did to me until I personally experienced this a few weeks ago.

By coincidence, as a college student, I once read a related short story by the noted Argentinean author Jorge Luis Borges. The name of the story was "Tlon, Uqbar, Orbis Tertius", and in it, the narrator comes upon an article in an encyclopedia which turns out not to exist in any other copy of the same edition of the encyclopedia. I remember thinking to myself that the premise of the story was a little ridiculous.

However, something that I recently experienced in immigration law changed my mind.

I was working on the case of a client whose application for adjustment of status which was submitted by his former attorney was denied for reasons which I believe were erroneous. It was way too late to submit a Motion to Reconsider, and what's more, the USCIS has issued a Notice to Appear (NTA) placing the person in removal proceedings before an Immigration Judge. If this was not bad enough, since the visa numbers in the EB-3 category have retrogressed, our client's priority date was no longer current, so it was not simply a matter of resubmitting his application for adjustment of status before the Immigration Judge.

"There must be a way to get the case heard by the Judge", I thought. If the USCIS had not mistakenly denied the application, it would not be before the Judge at all. I conferred with Attorney Howard Hom who is Of Counsel to our law firm. Howard instantly gave me the answer that I was seeking, "Carl, I've got a case just like yours in Immigration Court. I am relying on a 1977 BIA decision which holds that despite the absence of a visa number, you can renew the case before the Judge. It's called Matter of Huang."

Relieved, I thanked Howard, and looked up Matter of Huang in Volume 16 of the Administrative Decisions of the Immigration and Nationality Law of the United States. It was there, but it held exactly the opposite of what Howard told me. Howard and I started working as INS Attorneys back in 1976, and I was sure that he would not make a mistake like this. I tried to call him on his cell phone, but he wasn't answering, so I was forced to leave a message. In the meantime, I consulted the Immigration Law Sourcebook, the "Bible" of immigration lawyers. There were two Matter of Huangs listed in the index, one from 1965 and the other from 1988, and neither one had anything to do with the 1977 version of Matter of Huang.

Becoming more and more frustrated, I was relieved when the phone rang and it was Howard. I explained the cul de sac that my research had led to. Howard laughed and replied that the BIA had reconsidered the "first" Huang and he had forgotten to tell me that the revised decision did not get printed in the books. "You have to get the decision online." This time, I asked Howard to remain on the phone while I searched for the online version of the decision. From our "Deportation" page, I clicked on

to reach our "Executive Offices of Immigration Review" page, then clicked again, and scrolled down to the "Board of Immigration Appeals" portion of the page, and clicked on "Decisions of the Board of Immigration Appeals (1962- Present)". I clicked again on "Volume 16" and scrolled down to Decision #2616, Matter of Huang, and noticed that, unlike in the book, there were two versions of the decision, and on the second version, there was a little green tab with the word "UPDATED" blinking on and off. "I'm amazed," I told Howard, "but I never doubted you." He laughed and left me to read the case. Not surprisingly, Matter of Huang held exactly what Howard said it did. The regulation that underpins the holding in the case still exists although it has been renumbered. Huang has never been overruled or modified, and it is a precedent decision so that the Judge is bound by its holding.

Given that the USCIS usually issues an NTA when it denies an I-485, the agency's restrictive interpretation of section 245(k) and the significant retrogressions that have occurred recently, Matter of Huang has gained tremendous importance, yet it can't be found in any book, only on the web. Matter of Huang will save our client from deportation, and allow him to remain legally in the U.S.

Senor Borges, I beg your pardon. It's taken me 40 years to understand the significance of your story, but better late than never. A lot of immigrants stand to benefit from the elusive Matter of Huang.

Muchas gracias!

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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