I have been placed in removal proceedings because USCIS wrongly deemed that I entered the marriage for the sole purpose of obtaining immigration benefits. While my wife and I have had major marital issues, the marriage is certainly valid and is still going on till 2005.
If by any unfortunate measure, the judge sides with USCIS decision, would I still qualify for prosecutorial discretion?
You need an immigration attorney to sort this out. There are many factors that go into PD being granted. Good luck!
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I agree with my colleague. No one is entitled to PD, it is entirely up to the discretion of the attorney assigned to your case and their supervisors. It is my understanding that nationwide (and certainly in the area I practice) that PD is still only being granted in cases where extreme equities are present (such as having a sick child or being the victim of abuse). If the marriage fraud finding stands, you are going to have to present some pretty significant and unusual equities to be granted PD.
Your best bet is to hire an immigration attorney to challenge the marriage fraud finding as soon as possible.
You may provided you meet all the required eligibility for it, i.e. you have entered US before your 16th birthday, you have resided in the US continuously for the past 5 years, which certainly appears that you have, you are high school or college graduate, or currently pursuing GED, or have been honorably discharged from the military and have no felony or serious misdemeanor conviction.
Contact attorney Gintare Grigaite, Esq. at 646-407-2331, located in New York and New Jersey. Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.
First, you must combat the marriage fraud finding. If you are stamped with the 204(c) preclusion you are forever barred from receiving a visa petition in the future subject. Therefore, you must litigate the I-130 denial now while it is still ripe for appeal. Second, one of the prongs in the Civil Enforcement Memorandum dated March 2011 that the Morton PD memorandum incorporated is that PD should not be given for those who are engaging in visa fraud. Noting our experience with the local chief counsel's office, you're request would be received but likely denied. Now is the time to hire counsel to represent you and your spouse moving forward.