Wife withdrew I-130 by mistake and I'm in removal proceedings: Can she file a new I-130?

A petitioner can refile an I-130 for someone in removal proceedings, but the judge has discretion over whether the beneficiary can remain in the U.S.

Question

I am from Morocco. I am in removal proceedings and I told my immigration judge I want to apply for adjustment of status based on my marriage to a U.S. citizen. He gave me extra time for my wife to file the I-130 with USCIS. We had separate interviews with USCIS and my wife told me they asked her very inappropriate questions. After that, we didn’t hear from USCIS for a few months. Then last week she received a call from them when she was busy at work. She says they asked her some questions she didn’t understand, so when they asked her if she wanted to “withdraw” she said yes. Yesterday we received a letter saying she had withdrawn her I-130. But she says she never meant to do that. We really love each other, and now we are not sure what to do. My next removal hearing is next week. I want to tell the judge what happened. Will he let me file a new I-130?

Answer

The good news is, in principle, there is no limit to the number of I-130s your wife can file for you, and there is no limit to the number of continuances (the amount of extra time) your judge can give you. Moreover, there is no need to wait for the judge’s permission before refiling. So, your wife can act immediately.

However, the judge has a lot of discretion (a lot of freedom to decide as he pleases), and there is no way to predict whether he will let you stay in the U.S. while your wife’s I-130 is pending. So, at your next hearing, you will need to give him a very good explanation for what happened when your wife received the phone call from USCIS.  Make clear that her “withdrawal” was based on a misunderstanding and was, therefore, involuntary. Make sure she shows up with you at the hearing.

Also: Contact in advance the government lawyer who will be appearing against you, to try to convince him or her not to oppose your request for a continuance. (You can do so by calling your local Immigration and Customs Enforcement or "ICE" office.)

If the judge is not convinced by your explanation, he could ask you to come back another day for a special individual hearing, giving you an opportunity to make your case in more detail.

You would greatly benefit from the assistance of an experienced immigration attorney in implementing this strategy.

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