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Q&A with Immigration Attorney Uhuru Ndirangu: Can USCIS grant a green card which was previously denied?

Posted by Administrator on January 12, 2012

Question:

Mr Uhuru, This prosecutorial discretion issue, can your case be dismissed before it is placed on an immigration court docket and be granted a green card even if it had been denied?

Answer:

Prosecutorial discretion is very broad.  This discretion includes whether to charge a person, what types of charges to bring, whether to drop charges, among others.  The Board of Immigration Appeals (BIA) has no authority to review prosecutorial discretion, Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000).  In general, the government (through Department of Homeland Security –DHS- decides if and when to charge a person.  Yes a case may be dismissed by the government and the government may even grant a green card even if it had been denied before.  If a Notice to Appear (NTA) has already been issued and filed, then ICE prosecutor can move to dismiss the proceedings without prejudice and USCIS has the authority to grant a green card.

Question.

I was denied a Marriage Based Green Card due to insufficient evidence. Now what?

Here it depends on what DHS decide to do.  If DHS deny the petition and makes what is called a 204( C) finding, (marriage fraud finding),the alien will be put in removal proceeding.  Marriage fraud is a serious crime and penalties include up to five years in jail and a fine of $250,000.  Additionally such an alien is precluded from any other immigration benefit.  There are very few ways of overcoming this finding, please consult your attorney on this.   If no finding of marriage fraud, DHS may still put the alien in removal proceedings but the alien is not precluded from other immigration benefits.

Did you know?

Ten day notice  INA §239 (b) –Respondent must be granted at least 10 days after service of NTA before hearing can commence to provide opportunity to secure counsel, unless respondent requests in writing an earlier date.

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