What the decision says
In Matter of Yadav, the Board of Immigration Appeals held that a valid marriage to a United States citizen entered into after a removal order does not constitute an exceptional situation warranting sua sponte reopening of removal proceedings. Sua sponte reopening — discretionary reopening — is required where more than 90 days have elapsed from the date of the Order of Removal and there are no statutory exceptions to the time limitation.
Who this affects
The decision impacts anyone who:
- Had an Order of Removal entered against them,
- Failed to depart,
- Later married a U.S. citizen, and
- Now seeks to adjust status to that of a lawful permanent resident.
For these cases, adjustment of status would require reopening removal proceedings, because USCIS does not have jurisdiction over adjustment of status where the immigration court does. Under Matter of Yadav, the post-removal marriage alone is no longer enough to justify reopening.
The exceptions still matter
Matter of Yadav does not apply to respondents who did not know that an Order of Removal was entered against them. And in my own practice I have argued — and continue to argue — that it does not apply when my client was a minor child under a parent’s asylum application, because there was no final order of removal: there was a timely appeal, and the Board stayed proceedings when the 2010 Haiti earthquake led to Temporary Protected Status eligibility.
Every case turns on its procedural history. The exceptions are narrow, but they are real.
A new fine schedule
$998 per day. Following the decision, the Board further ordered that a respondent subject to an Order of Removal who willfully fails to depart under certain circumstances is subject to a fine of $998 per day for every day they remain after the date for departure in the Order of Removal. For anyone unaware of their order — or unaware of how to address it — the financial exposure adds up quickly.
What to do if this affects you
If you have an old removal order and have since married a U.S. citizen — or if you believe a removal order may have been entered against you without your knowledge — the first step is to speak with an experienced immigration attorney. Matter of Yadav narrows the door. It does not close it. The procedural exceptions matter, and the new fine schedule makes timely review even more important.
Direct line: (561) 368-1008 · Monday through Friday, 9 AM to 5 PM Eastern. The first call is free. When you call, you reach me directly.
Roberta M. Deutsch
Boca Raton immigration attorney · 30+ years
Florida Bar #743828
(561) 368-1008