Xiang Chen v. U.S. Immigration & Naturalization Service

MEMORANDUM ***

Xiang Chen, a citizen of the People’s Republic of China, filed an Application for Asylum following his entry into the United States. Chen’s application was denied by an Immigration Judge, and the Board of Immigration Appeals (BIA) affirmed. Chen remained in the United States while the Immigration and Naturalization Service (INS) attempted to obtain necessary travel documents for him from the Chinese government. During this time, Chen married a United States citizen, Ling Chiu. Chiu filed an 1-30 form, Petition By Alien Relative, which the INS granted. However, since a Warrant of Removal/Deportation for Chen had already issued, Chen was required to reopen his case before the BIA in order to apply for an adjustment of status.

Because more than 90 days had elapsed since the denial of Chen’s asylum petition on appeal, the BIA could entertain a motion to reopen only if both parties agreed. To this end, Chen filed with the INS an Application for Permission to Reapply for Admission to the United States. The INS district director denied Chen’s request, and the INS Administrative Appeals unit affirmed this denial.

While these proceedings were pending before the INS, Chen…