LA IMMIGRATION JUDGE GRANTS GREEN CARD TO CAMBODIAN WIDOW OF
AMERICAN HUSBAND
By: Roman P. Mosqueda, Esq.
Ms. Ly MacDonough entered the United States from Cambodia on September 22, 1996 on a B-2 (tourist) visa. She was born in Takeo, Cambodia.
On or about December 1, 1997, she prepared, signed and caused to be filed
her Application for Asylum and for Withholding of Removal, alleging fear of
persecution and torture, if she
were to return to Cambodia because she was a member of the Funcinpec Party, some
of whose members were killed by the forces of Hun Sen, who deposed Prince
Norodom Ranariddh, the leader of the Funcinpec Party.
Order Of Removal
In Absentia:
Sometime in January 1998, she attended a noticed interview on her asylum application with the Service. At that interview, she was informed that the decision would be mailed to her.
On March 20, 1998, she married her United States citizen husband, Bruce MacDonough, and moved to her husband’s address at 1235 West 141st Street, Gardena, CA 90247. She informed the Service of her new address in September 1998.
Her asylum application was denied, and she fell out of lawful status on March 21, 1998. A Notice To Appear (which placed her in removal proceedings) was issued by the Service on April 3, 1998, and mailed to her old address at 6150 Myrtle Avenue, Long Beach, California.
The Notice To Appear scheduled her for a master calendar hearing before the Los Angeles Immigration Court on June 8, 1998. She did not receive the Notice To Appear.
Whoever signed the Postal Service Certified Return Receipt had no authority to receive mail for her and failed to forward it to her. Accordingly, she did not appear at the June 8, 1998 hearing, and was ordered removed in absentia by Immigration Judge Jan D. Latimore.
She filed a Motion To Reopen on March 13, 2002, after she came to know of the order of removal in absentia. Her motion to reopen was denied on April 4, 2002.
Appeal To Board Of
Immigration Appeals:
Within the 30-day period from the order of denial of her motion to reopen, she timely filed her Notice of Appeal to the Board of Immigration Appeals.
She filed her Brief In Support Of Appeal; and the Service filed its Memorandum In Opposition To Respondent’s Motion To Reopen.
The Author was retained to continue prosecuting her appeal, and filed
Respondent’s Reply Brief To Service’s Opposition To Respondent’s
Motion To Reopen With Application For Stay Of Removal.
Citing In re G-Y-R-, Respondent, 23 I&N Dec. 181 (BIA 2001), the Author argued in aforesaid Reply Brief that: “While the statute (Section 239(a)(1) of the Immigration and Nationality Act) may permit the regular mailing of the Notice To Appear to the last known address, the ‘(a)(1)’ address so to speak, the statute does not authorize the entry of an in absentia order unless the advisals in the Notice To Appear are properly conveyed, at which time the address will have become an ‘(a)(1)(F)’ address (conversion of last known address as respondent’s address).”
Per Per Curiam Decision dated June 16, 2003, the Board of Immigration Appeals sustained her appeal, reopened the removal proceedings and remanded the case to the Immigration Judge for further proceedings.
The Board found that: “The facts of this case fall within the parameters of our decision in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001).”
Indeed, the Board further found that: “The record reflects that the
respondent married a United States citizen on March 20, 1998, and that she was
living at a different address at the time the Notice To Appear was delivered.
Accordingly, the record does not reflect that the respondent actually
received the Notice To Appear. Moreover,
as she had never received it, she was under no notice that she was required to
update her address as required by that document.”
Form I-360
(Application For Amerasian, Widow(er) Or Special Immigrant):
On or about January 23, 2002, Ms. MacDonough’s husband, Bruce MacDonough filed Form I-130, Petition For Alien Relative, which was approved on March 28, 2002, by the California Service Center.
She could not, however, adjust status with the Service because she has been in removal proceedings since April 3, 1998. Worse, on September 21, 2002, her husband died.
But, since she was married for at least two years (married since March 20, 1998) with a U.S. citizen husband, was not legally separated from her spouse at the time of his death, and had not remarried, she filed through the Author on July 30, 2003, within two years of his husband’s death, Form I-360, Petition For Widow of U.S. citizen, who died in the past two years, under Section 201(b)(2)(A)(1) of the Immigration and Nationality Act.
On January 7, 2004, the California Service Center approved the Form I-360
Petition.
Adjustment Of
Status As Widow Of U.S. Citizen:
On or about February 9, 2004, Form I-485, Application To Register Permanent Resident Or Adjust Status, was feed in and caused to be subsequently filed with the Immigration Court, with supporting documentation and Affidavit of Support from respondent’s nephew.
At the hearing on July 7, 2004, before Immigration Judge Jan D. Latimore, the medical examination papers were filed and found in order. At the hearing on July 21, 2004, the respondent was given 60 days to file supplemental documentation.
On July 26, 2004, supplemental documentation, which included copy of Letter of Administration with Will Annexed of the Estate of Bruce MacDonough was filed. The husband’s will gave the residual of his estate (the house) to her.
At the merits hearing on October 5, 2004, the Author presented Ms. MacDonough, who testified on her personal circumstances, marriage to Bruce MacDonough, living together with him up to this death, her appointment as Administrator of his husband’s estate, and receipt of the net proceeds of the sale of his house.
Her nephew, who executed the Affidavit of Support, was also presented on his qualifications and obligations as sponsor under the Affidavit of Support.
Immigration Judge Jan D. Latimore granted adjustment of status to lawful permanent resident to Ms. MacDonough at the hearing on October 5, 2004. The grant became final, because Department of Homeland Security Assistant District Attorney Sumeet Lall did not oppose the grant and waived appeal.