Are you currently in removal proceedings before an immigration judge — or do you have a removal order, even an old one, that was never executed?
In short
**Open removal proceedings** = adjustment is decided by the immigration judge under EOIR jurisdiction, not USCIS. Strategy options: prosecutorial discretion / dismissal motion (limited under current DHS policy), motion to terminate on *Pereira/Niz-Chavez* NTA defect grounds, or in-court adjustment with USCIS pre-adjudication of the I-130. **Old unexecuted removal order** = motion to reopen under 8 C.F.R. § 1003.23 (sua sponte or based on changed law/facts) is required *before* any green card path opens.Context & Examples
Real example — Eduardo, Sacramento. Eduardo missed an immigration court hearing in Phoenix in 2011 because the NTA was sent to the wrong address. He was ordered removed in absentia, kept living and working in Sacramento, and married Liliana (USC) in 2023. We could not file I-130 + I-485 — the old order was alive and ICE could execute it on any traffic stop.
The attorney move: (1) Filed motion to reopen under Matter of M-A-C-O- and Pereira v. Sessions — the original NTA omitted time and place, voiding service. (2) EOIR granted reopening. (3) DHS exercised prosecutorial discretion and joined our motion to terminate. (4) Once removal was no longer pending, USCIS regained jurisdiction. (5) I-130 and I-485 filed and approved.
Why this is the lawyer move: A pro se applicant in Eduardo's posture would have been arrested at the USCIS interview when the agency ran his name and the old order surfaced. The order has to come down first.
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