I was denied a Marriage Based Green Card due to insufficient evidence. Now what?
Q&A with immigration attorney Uhuru Ndirangu:
Question: “I have a pending case with the immigration court. I have been here for ten years and I have a family. My I-751 was denied for lack of sufficient evidence and a contradictory answer to a question I did not understand during the interview. Can a judge grant me my green card in court and what determines this?
Thank you. George M
Answer: A person seeking relief in removal proceeding may be eligible for several forms of relief. These include adjustment of status, voluntary departure, cancellation of removal, withholding of removal, asylum, among others.
If seeking relief through cancellation of removal for non Lawful Permanent Residents, then one has to show a ten year continuous residence, good moral character for 10 years, no certain convictions, that removal would result in exceptional hardship to his or her U.S. citizen or LPR immediate relative, and that the case warrants a favorable exercise of discretion.
If seeking relief through adjustment of status in immigration court, the immigration judge must adjudicate the adjustment and the case cannot be remanded to USCIS unless ICE counsel consents. It’s a matter of prosecutorial discretion whether ICE counsel consents to the case been remanded to USCIS. This means that an immigration judge has the authority to grant you a green card.
In removal proceedings, the Government has the burden of proving removability. (8 U.S.C. § 1229a(c)). Once the government has met this burden (through proving up the Notice to Appear) then the applicant has the burden to show eligible for the relief sought — i.e. adjustment of status. ( Aslam v. Mukasey, 537 F.3d 110, 115-17(2d Cir 2008). It is therefore the applicant’s burden to show that the marriage was a bona fide marriage and not entered into for purpose of immigration benefits.
George, immigration courts, like other courts require legal knowledge. The government, in this ICE counsel, is not allowed to give you legal advice. The immigration judge is not allowed to give you legal advice because the judge is supposed to be neutral. If you choose to represent yourself in court, you are expected to know the legal procedures. My advice to those in legal proceedings, whether immigration or any other legal proceedings, is to seek legal advice.
Please remember that this legal Information is intended for general informational purpose only. This legal information is not intended as a substitute to retaining an attorney. Please consult an attorney licensed to practice law in your jurisdiction for answers to your specific legal questions.
Did you know?
Good moral character. Under INA §101(f) (1) a person whose is a habitual drunkard is not considered to be a person of good moral character. (Habitual drunkard during the requisite period of the relevant form of relief being sought)
Uhuru Ndirangu is an attorney licensed to practice law in Texas. He is based in Houston, Texas.