New PD Policy | H4 Application Rejected and Later Referred to Immigration Courts, Use Prosecutorial Discretion Request to Dismiss Removal Proceedings
We will share a successful case in which we utilize PD policy to persuade the immigration judge to terminate the removal proceedings.
Our client is the spouse of an H-1B holder holding an H-4 visa. During the pandemic, the extension petition filed for the H-1B spouse was denied because the sponsoring employer failed to timely respond to the Request For Evidence. As the client’s H-4 status is dependent on the spouse’s H-1B, the denial also resulted in the loss of H-4 status of our client. Thereafter, the client received a Notice to Appear (NTA) before an immigration judge.
After a thorough legal analysis, we found that the client would have a hard time to provide additional materials to support a relief from removal. Besides, during the pandemic, the client had overstayed for more than 1 year. If the client left the states at his own will, he would be inadmissible for 10 years.
We believed we could take advantage of the new PD policy under the Biden administration, and immediately submitted a PD request on behalf of the client to OPLA. Upon OPLA’s grant of our PD request, we filed an unopposed motion to dismiss the client’s removal proceedings and the motion was later granted by the judge.
Prosecutorial Discretion (PD) is the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual. As the Department of Homeland Security’s (DHS) representative before the Executive Office for Immigration Review (EOIR) in exclusion, deportation, and removal proceedings, OPLA relies upon PD and other factors to guide its decision making.
To many respondents in different stages in immigration proceedings, the new PD policy is good news, for example:
-The case is in immigration courts, and now you hope to end the court proceeding and transfer to USCIS for applying a green card
-You were a green card holder, but now you are in removal proceedings (no serious criminal records and hope to end removal proceedings)
-You once had a removal order, and now your U.S. relative can support your green card application and you hope to reopen the removal order.
-You are A-10 card holder, and now you have a U.S. relative can be your petitioner for the green card application and you wish to reopen the removal order
-Illegal border crossings: You now in court proceedings, and now you want to apply for the I-601A waiver
Whether a PD is applicable depends on the types of cases. If you are facing similar problems, feel free to contact Law Offices of Sabrina Li.