Utilizing another law firm the client had applied for his spouse’s green card in 2007 and that application was denied citing the Adam Walsh Act. The Adam Walsh Act essentially bars sex offenders from petitioning for their spouse’s green card without first obtaining a waiver. To obtain the waiver the petitioner must show they are not a “threat” to their spouse or family member. USCIS utilizes this law to unlawfully deny many of these cases unfairly.
Thus, after receiving their initial denial the family timely appealed to the Board of Immigration Appeals (“BIA”). The BIA overturned USCIS’s decision but could not order they approve it. Instead they sent the case back to USCIS for further consideration and ordered them to make a new decision. At this point the family hired Law Offices of Nicklaus Misiti because of his prior success with similar cases.
The first thing Nicklaus Misiti did was to prepare a proper Adam Walsh waiver, as the client’s prior law firm never actually did this correctly. After receiving the petition USCIS knew the client qualified for the waiver but did not want to admit their error. Instead of issuing and approval as they should have done, they decided to take no action and left the case pending without a decision.
Fedup Nicklaus Misiti filed an action in Federal Court, arguing the Adam Walsh Act was applied unconstitutionally to the family and requesting a federal judge step in and compel a decision from USCIS. Attorney Misiti cited the Fifth and Fourteenth amendments of the US Constitution and the Mandamus and Administrative Procedures Acts.
Upset at being called out for their abuses the government decided to vigorously fight this and filed a Motion to Dismiss. Among the arguments they put forth was that the Federal Courts did not have jurisdiction. Attorney Misiti responded and made it clear the Court did have jurisdiction. The Federal Judge agreed, and denied the government’s motion to dismiss.
At this point Attorney Misiti decided to put further pressure on USCIS and prepared a motion for summary judgment requesting the Federal Judge order USCIS to make a decision and pay all filing and attorney fees. He also stated that should USCIS unlawfully deny the petition again, he would request the Federal Judge review the decision and order USCIS to pay for his client’s legal fees for this.
With their backs against the wall USCIS finally caved and made the right decision. Much to the client’s satisfaction they issued a final approval of his case within days.
For More Information
Many individuals have suffered unlawful and incorrect decisions on their immigration application due to the Adam Walsh Act and USCIS’s incorrect interpretation of the power it give them. The most important thing that can be done is to hire an attorney experienced with these types of cases from the start. Should USCIS decide to abuse their power it is important, looking ahead to any potential Federal Action, that the waiver request is properly prepared and all procedural hurdles met from the start. This allows a Federal Judge to find in your favor, should this become necessary. Otherwise you are just wasting your time and your money as any procedural error can result in you having to start the process from the beginning. Law Offices of Nicklaus Misiti is one of the few firms experienced with all facets of Adam Walsh related immigration cases. His firm has handled initial filings, to BIA and District Director appeals, and challenged the denials in Federal Court. His firm has successfully handled these cases throughout the United States. For a case evaluation you can reach his office at 212 537 4407 or via his website at www.misitiglobal.com. His firm does charge an initial fee for a consultation/