SRW Client Able to Avoid Removal Proceedings and Adjust Status Before USCIS Because of Grant of Prosecutorial Discretion Request
July 1st, 2013 by SRW Lawyers
Our Client, a citizen of India, had entered the U.S. several years ago on a valid visitors visa and overstayed and was now married to a U.S. citizen. The couple came to our office and we explained that since the Client had last entered the U.S. lawfully and was now married to a U.S. citizen, and was otherwise eligible for permanent resident status (no criminal history, etc.), he could pursue his green card based on their marriage under INA §245. He would be able to concurrently have his U.S. citizen wife file an immigrant petition on his behalf (Form I-130) and file his own adjustment of status application (Form I-485) with U. S. Citizenship & Immigration Services (USCIS). We explained that most recently, this process was taking approximately 4-6 months, from filing to adjudication.
While we were waiting on the couple to provide us with information/documents to prepare their paperwork, our Client inadvertently crossed the Peace Bridge Port of Entry in Buffalo, New York. By the time the Client realized his mistake, it was too late – he would now be subject to inspection at the Port of Entry with U.S. Customs & Border Protection Officers. When he arrived at the inspection booth, he was directed to secondary inspection and issued a Notice to Appear (NTA), placing him into removal proceedings for having overstayed his visitor’s visa. Fortunately, he was not detained and was allowed to return home.
The couple came to us the next day with this development and questioned its ramifications to the initially discussed strategy. We explained that if the Client was in removal proceedings, they would no longer be able to concurrently file Form I-130 & Form I-485. Rather, Form I-130 should be filed as soon as possible and in the interim, we could ask the Immigration Court to administratively close the Client’s case pending the adjudication of the Form I-130 by USCIS. If the removal proceedings were administratively closed, once the I-130 was favorably adjudicated, we would go back to the Immigration Court and request that the Client’s proceedings be re-calendared and that his removal proceedings be terminated so he could file his Form I-485 with USCIS. However, the Immigration Judge had the ability and discretion to determine whether the Immigration Court would adjudicate the Form I-485 or whether to grant the termination. We explained that under this strategy, it could easily take well over a year for the Client’s adjustment of status application to be adjudicated.
After explaining these ramifications to the Client, we were able to offer one glimmer of hope – there was a possible chance to avoid the change in strategy if we could advocate on the Client’s behalf with U.S. Immigration & Customs Enforcement (ICE) Counsel and request that they exercise Prosecutorial Discretion by not filing the NTA with the Immigration Court. We would explain that the Client has no criminal history, was clearly eligible for adjustment of status as the spouse of a U.S. citizen, did not meet the agency’s civil enforcement priorities and it would not be a good use of limited judicial resources to have the Client go through removal proceedings.
Our Client agreed to have us with this Prosecutorial Discretion request on his behalf. We promptly contacted ICE Counsel, explained the situation and ultimately received their agreement not to file with the NTA with the Court. We quickly filed Form I-130/Form I-485 with USCIS on the Client’s behalf and the NTA was subsequently cancelled. Our Client is now scheduled for his adjustment of status interview at the end of July.
Through SRW’s successful advocacy and strategy, our Client was able to successfully avoid the stress, financial burden and anxiety associated with Immigration Court.
