These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
I-751
The Sixth Circuit has determined that an applicant who refused to answer questions related to marriage fraud at his I-751 interview, and whose conditional residency was terminated for constructive non-appearance at the interview, is not eligible to seek a waiver under section 237(a)(1)(H) of the INA.
The full text of Seldon v. Garland can be found here:
The Ninth Circuit has determined that it does not have jurisdiction to review a negative credibility determination made by the agency with respect to the denial of an I-751 waiver. However, the Court found that the good faith marriage determination is a mixed question of fact and law over which it maintained jurisdiction to review. However, because it is a “primarily factual question,” the court’s review is deferential.
The full text of Zia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/21-1325.pdf
The Second Circuit has determined that a non-citizen whose conditional residence is terminated for failure to file a joint petition to remove the conditions is not eligible to seek a waiver under section 237(a)(1)(H) of the INA, even if the failure to file the joint petition is related to to marriage fraud.
The full text of Bador v. Garland can be found be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/413f83c3-2f65-479a-a951-2b9c1c3c5908/3/doc/22-6492_opn.pdf
The Board of Immigration Appeals has determined that an Immigration Judge has no authority to review a withdrawn I-751. In this case, the respondent and his ex-wife filed a joint I-751, but his wife subsequently withdrew it. Although the respondent claimed she was coerced to do so, the Board determined there was no proof of coercion, such as an affidavit from the ex-wife. “Because the respondent has presented insufficient evidence to substantiate this claim, we do not need to decide whether the Immigration Judge had the authority to review his claim that the Form I-751 petition was withdrawn due to coercion.”
The full text of Matter of Bernardo can be found here:
The Board of Immigration Appeals has affirmed the right of a non-citizen to seek review of a denied I-751 petition in removal proceedings, despite any request to dismiss proceedings by the Department of Homeland Security.
The full text of Matter of H.N. Ferreira can be found here:
The First Circuit has determined that the good faith marriage determination required by an I-751 waiver is a mixed question of fact and law, which the court maintains jurisdiction to review. The court noted the underlying factual findings would not be reviewable.
The full text of Alzaben v. Garland can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge may consider whether a respondent misrepresented the bona fides of her prior marriage at an I-751 interview, even if USCIS has approved an I-130 filed by a subsequent spouse.
It is strange that this respondent did not seek a 212(i) waiver before the Immigration Judge, since she was married to a U.S.-citizen spouse, and had a qualifying relative for the waiver.
The full text of Matter of Mensah can be found here:
The Seventh Circuit has upheld the denial of a continuance to an application who waited until 3 months before his merits hearing to file an I-751 waiver, despite his jointly-filed I-751 having been denied 3 years early based on marriage fraud.
The full text of Toure v. Barr can be found here:
Hernandez requested a waiver of the joint petition to remove the conditions on his residence, on the ground that he entered into a bona fide marriage that had ended in divorce. Because of the many years that had passed since his divorce, Hernandez had very little supporting documentation to prove that he had entered into a bona fide marriage. He did, however, testify unequivocally that married his ex-wife because he loved her.
On appeal, the Seventh Circuit disagreed with the Board of Immigration Appeals' finding that Hernandez had not submitted sufficient evidence to demonstrate by a preponderance of the evidence that his marriage was bona fide. "Hernandez testified unequivocally that he did not marry Winger to obtain residency but because he 'loved her.' If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide. Because the Board elected to credit all of Hernandez’s testimony—including his assurance that love, not residency, motivated him to accept Winger’s proposal—the only conclusion it could then logically reach was that Hernandez’s marriage was bona fide. The Board’s failure to reach that conclusion is a legal error. "
In response the Government's contention that Hernandez was required to provide corroborating documentation under the REAL ID Act, the court stated that "this provision of the REAL ID Act is irrelevant here because neither the IJ’s nor the Board’s ruling rests on a determination that Hernandez had failed to provide available corroborating evidence. "
The decision in Hernandez Lara v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-18/C:14-3305:J:Williams:aut:T:fnOp:N:1571971:S:0
Normally, I enjoy a good Judge Posner decision. He's empathetic and thoughtful - he recognizes the obstacles (language barriers, difficulty accessing foreign documents, etc.) that many of our clients have to overcome in their question for immigration status. Last week, while his fellow judges denied a man's request to remove the conditions on his residence, obtained through marriage to a U.S. citizen who he ultimately divorced, Judge Posner again sided with the immigrant underdog, finding that the Immigration Judge should have given him a continuance to allow his former wife to testify about the bona fide nature of their marriage. His thoughtful opinion recognized the difficulties of a commuter marriage, blending a new family, and tackling family finances. I appreciated all of these remarks, as they accurately reflect what my clients often go through.
What I didn't appreciate was Judge Posner's categorical qualification of the private immigration bar as "weak." Like any other group of attorneys, we have our good and our bad, but I'd match many of my colleagues against any adversary on any day. I respect Judge Posner, and I hope in the future, he shows us a little more respect.
The full text of Bouras v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-04/C:14-2179:J:Hamilton:aut:T:fnOp:N:1511234:S:0
