* PC was admitted on 6/22/05 under H-2A through 12/1/05; he never left
* In 2010, when PC was 25 years old, his USC father recognized paternity and legitimated him in PC's birth country of Brazil
* In 2015, PC was convicted of DUI (not clear if there were any aggravating factors). He was detained after violating his parole (drank the night before going to see his PO)
* NTA was issued on 12/15/15, charging him under 237(a)(1)(B) only
* On 2/24/16 he was ordered removed by Dempsey. It appears that he was represented and attorney advised him to take the removal order
* PC has a 5-year-old USC son
Based strictly on the facts you presented, it would appear he is eligible for 42B. He has the time in-country, and the USC child. The question is – why did he not plead this relief at his hearing? The part about dad sponsoring him seems like a bit of a red herring at the moment, as there does not seem to be a basis for auto citizenship here.
I would immediately file an appeal with BIA. When filing an appeal ALWAYS FILE FOR A STAY OF REMOVAL PENDING ADJUDICATION. If you don’t file this…bye-bye. The relevant code is 8 CFR 1003.2(c)(1) which reads in part:
“…nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Subject to the other requirements and restrictions of this section, and notwithstanding the provisions in § 1001.1(p) of this chapter, a motion to reopen proceedings for consideration or further consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation.”
Note that you will need to show that he was not presented with this relief. You need to support the HELL out of this relief. What is the hardship? Get it all together and get a-filin’. Normally, I would advocate filing with the court first, and THEN filing the appeal. However, I have never known the immigration court to stay a deportation – and I’ve never known the BIA NOT to stay a deportation order pending determination. So go with the BIA.
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