These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
marriage fraud
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 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 limited the circumstances in which a non-citizen may seek a 237(a)(1)(H) waiver to address marriage fraud. Specifically, the waiver cannot be used when the non-citizen is charged with removability for termination of conditional residence when a joint Form I-751 wasn’t filed. In this case, the joint petition was filed, but the U.S.-citizen spouse withdrew her support, and the non-citizen subsequently filed an I-751 waiver based on a good faith marriage, which was denied by USCIS.
The full text of Matter of Bador can be found here:
The Board of Immigration Appeals has determined that an Immigration Judge can examine the bona fides of a marriage during an adjustment of status hearing even if the couple already has an approved I-130.
The full text of Matter of Kagumbas can be found here:
The Board of Immigration Appeals has determined that USCIS may deem a prior marriage to have been fraudulent, even when the I-130 filed based on that marriage was denied for failure to establish the bona fides (but not for marriage fraud). “The Summary of Findings describes significant discrepancies in the accounts given by the beneficiary and his first wife regarding (1) whether and for how long the couple lived at the claimed marital residence; (2) their places and type of employment (and whether they, in fact, worked at the same store owned by the beneficiary’s father); and (3) the former wife’s living arrangements in Salem and the reasons why the beneficiary paid rent for her apartment there. Additionally, the record contains documentation of contradictions that arose during the beneficiary’s two visa interviews regarding how, when, and where he met his first wife, as well as how their relationship progressed to marriage. The petitioner submitted no new documentary evidence showing a joint life between the beneficiary and his first wife, apart from affidavits from the petitioner, the beneficiary, and the pastor who conducted the beneficiary’s first wedding ceremony. Affidavits of this nature, alone, ‘will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.’”
The full text of Matter of Pak can be found here:
The Board of Immigration Appeals has determined that an individual who sought a K-1 fiancee visa based on a sham engagement has conspired to enter into a marriage for the purpose of evading the immigration laws, and as such, is subject to the future consequences of a section 204(c) finding. “For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.“ “For the Attorney General to make such a ‘determination,’ there must be an overt act. The filing of a visa petition is an overt act in furtherance of the conspiracy. It is not enough, however, if two parties merely ‘agree’ to enter into a marriage for the purpose of evading the immigration laws but never engage in any other action or conduct that furthers that agreement.”
The full text of Matter of R.I. Ortega can be found here:
The Board of Immigration Appeals has issued a new decision clarifying the standard for denying an I-130 petition based on marriage fraud. The standard of proof necessary to bar the approval of a visa petition based on marriage fraud is substantial and probative evidence. This standard is more than a preponderance of evidence, and closer to (but less than) clear and convincing evidence. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud, and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence.
The central question in determining whether a sham marriage exists is whether the parties intended to establish a life together at the time they were married. Such a determination requires an examination of the conduct of the parties before and after the marriage to ascertain their intent, but only to the extent that it bears upon their subjective state of mind at the time they were married.
A sworn statement by the parties admitting that the marriage is fraudulent, that money changed hands, and that the couple did not intend to live together or consummate the marriage is direct evidence of fraud that is substantial and probative. However, an admission or other such direct evidence is not necessary to establish marriage fraud.
Where there are some minor inconsistencies and the documentary evidence is limited, they should be considered in assessing whether there is fraud, but these factors, without more, would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud. Evidence that the parties knowingly and deliberately attempted to mislead or deceive immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage strongly indicate fraud. Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud. Evidence that the parties have other romantic partners, with whom they may have children, is also a significant consideration, especially when these facts are either not disclosed or are deliberately concealed. Statements from family members, employers, or acquaintances indicating they do not know about the marriage or that the parties told them the marriage is a sham are additional indicia of fraud. Other circumstantial evidence that may support a finding of marriage fraud includes evidence that one or both parties have been filing taxes as single persons during the marriage or otherwise holding themselves out to be single while representing to immigration officials that they are still married. Official Government documents indicating fraud carry more evidentiary weight than informal evidence of a bona fide marriage, such as insurance policies or bank account statements.
Where there is evidence that the petitioner has been married to several beneficiaries, especially if a connection between the petitioner and a former spouse has continued through joint property ownership, finances, or benefits, the likelihood of the beneficiary’s involvement in a fraudulent scheme should be considered. Affidavits alone will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.
The full text of Matter of P. Singh can be found here:
The Third Circuit has determined that a person who is convicted of making false statements in connection with a fraudulent marriage, and who is subsequently charged with deportability for a crime involving moral turpitude, cannot use a waiver under 237(a)(1)(H) of the INA to reach the crime involving moral turpitude ground.
“The fraud waiver ‘also operate[s] to waive removal based on the grounds of inadmissibility directly resulting’ from the underlying fraud. 8 U.S.C. §1227(a)(1)(H). But Tima’s removability under §1227(a)(2)(A)(i) for a conviction of a crime involving moral turpitude is not based on a ‘ground of inadmissibility.’ So the fraud waiver does not reach that clause. This conclusion follows from the Act’s text, structure, and application of the canons of construction.”
The full text of Tima v. Attorney General can be found here:
The First Circuit has determined that an immigration judge may inquire into the bona fides of a marriage that is the basis of an application for adjustment of status, even after U.S. Citizenship and Immigration Services has approved an immediate relative petition based on the marriage. The court noted that an immigration judge has a duty to determine if an applicant for adjustment of status is admissible, which includes ruling out that the applicant has committed marriage fraud.
The full text of Chan v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/15-2112P-01A.pdf
The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver cannot waive a conviction for marriage fraud, when such conviction qualifies as a crime involving moral turpitude. Although the waiver can waive the inadmissibility related to fraud, the conviction qualifies as a separate ground of inadmissibility, not covered by the waiver.
The full text of Matter of Tima can be found here:
The Seventh Circuit has affirmed a finding of marriage fraud by an Immigration Judge in which the Department of Homeland Security presented hearsay evidence that the petitioner's ex-spouses confessed to the fraudulent nature of their marriage. Although the ex-spouse did not testify in court, the Immigration Judge did issue a subpoena to compel her testimony. The Seventh Circuit faulted the petitioner for not requesting that the Immigration Judge request enforcement of the subpoena through the local AUSA's office. Thus, the hearsay evidence was fair and probative.
The full text of Vidinski v. Lynch can be found here:
An Immigration Judge denied Sonia Tillery's application for VAWA cancellation of removal, suggesting that she had not proven that her marriage to her abusive US citizen was bona fide. The Board of Immigration Appeals affirmed. The First Circuit reversed, noting that the VAWA cancellation statute (unlike the VAWA self-petition statute) does not specifically require proof of a good faith marriage. While the statute does not permit an applicant to be inadmissible under the statutory provision related to marriage fraud, the Court noted that there was not an explicit finding of marriage fraud, and as such, remanded the case to the agency for further proceedings consistent with the opinion.
The full text of Tillery v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1193P-01A.pdf
The Eighth Circuit has determined that the filing of a Petition to Remove Conditions on Residence, when the marriage underlying the residence was fraudulent, is a continuation of a conspiracy to commit marriage fraud. As such, when that petition is submitted within 5 years of the applicant's admission as a permanent resident, the applicant can be charged with deportability based on the commission of a crime involving moral turpitude within 5 years of admission.
The full text of Ashraf v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/04/143179P.pdf
Nikolay Zyapkov married a U.S. citizen, who filed a petition on his behalf. Later, he was placed into removal proceedings for overstaying his tourist visa. While in proceedings, his daughter from a previous relationship naturalized and also filed a petition on his behalf. US Citizenship and Immigration Services ultimately concluded that Zyapkov's marriage was fraudulent and denied the petition filed by his wife. Strangely, however, the petition filed by his daughter was subsequently approved, despite the fact that section 204(c) of the Immigration and Nationality Act prohibits any person who has been found to have entered into a marriage for the purpose of obtaining immigration benefits to become the beneficiary of another family-based petition in the future. Nevertheless, the Immigration Judge determined that Zyapkov's marriage was a sham, and as such, that he was inadmissible for having committed fraud to gain an immigration benefit. He denied Zyapkov's application for permanent residency based on his inadmissibility and as a matter of discretion.
Despite the inherent contradiction between a marriage fraud finding and the approval of the subsequent petition filed by Zyapkov's daughter, the Seventh Circuit upheld the Judge's marriage fraud finding on appeal.
The full text of Zyapkov v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D03-29/C:15-2063:J:Manion:aut:T:fnOp:N:1727875:S:0
In Matter of Christo's, Inc., a restaurant sought to sponsor a cook for his permanent residence. The beneficiary was also the beneficiary of a marriage-based petition. However, he claimed that the marriage certificate submitted with that petition was false, and that he had never married or met the other party named in the certificate. United States Citizenship and Immigration Services (USCIS) revoked the previously approved employment-based petition, finding that the beneficiary had engaged in a fraudulent marriage for the purpose of obtaining an immigration benefit, and thus, was barred from being the beneficiary of any immigrant petition, such as the one submitted by the sponsoring employer. The beneficiary's adjustment of status application was also denied. Initially, the AAO agreed that the marriage fraud barred applied.
Upon additional review, the AAO determined that the marriage fraud bar was not implicated. "An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws, but is not, by such act alone, considered to have 'entered into' or attempted or conspired to enter into' a [fraudulent] marriage." Such conduct, may, however, render an individual inadmissible for making a material misrepresentation for the purpose of obtaining an immigration benefit.
The full text of Matter of Cristo's, Inc. can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3831.pdf
I don't usually blog about unpublished cases, but today I'm making an exception. The Third Circuit issues a non-precedential decision regarding marriage fraud (one of the stickiest areas of immigration practice) and 237(a)(1)(H) waivers which I think is worthy of some attention. Tima obtained conditional residence through his marriage to a U.S. citizen, but was later convicted in federal court for marriage fraud. He admitted that his marriage to his first wife was fraudulent. He later remarried and had three children with his second wife, who eventually became a naturalized U.S. citizen. Tima was placed in removal proceedings, where he was charged with removability based on marriage fraud, commission of a crime involving moral turpitude, and the fact that his conditional residence was terminated. Tima argued to the Third Circuit that he could stack a 212(h) waiver (which would waive the immigration consequences of the criminal conviction) with a 237(a)(1)(H) waiver (which would waive the immigration consequences connected with marriage fraud even when there is no criminal conviction). The Government argued (and the Immigration Judge agreed) that the termination of Tima's conditional residence for failure to file a petition to remove the conditions on his residence (I-751) was a separate ground of removability that could not be cured by the waivers.
The Third Circuit found that the 212(h) argument had not been exhausted before the Board of Immigration Appeals, and thus, it had no jurisdiction to consider it. However, it disagreed with the Immigration Judge's finding that the termination of Tima's residence was a separate ground of removability that could not be cured by the 237(a)(1)(H) waiver. The court noted that the form to remove the conditions on his residence would have required Tima to declare, under penalty of perjury, that his marriage to his first wife was not for the purposes of obtaining immigration benefits. Before the form was due, however, he had pled guilty to entering into a sham marriage to his first wife to obtain immigration benefits. Thus, if he had submitted the I-751, he would have committed perjury. Thus, the Government's argument that Tima should have filed the I-751 was untenable.
The Third Circuit remanded the case to allow for consideration of the 237(a)(1)(H) waiver. Moreover, even though the 212(h) waiver had not been exhausted before the Board, Tima would have the opportunity on remand to fully raise this issue.
The full text of Tima v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/133935np.pdf
In an unsurprising decision, the 8th Circuit affirmed an Immigration Judge's denial of an immigrant's 13th request for a continuance. The Judge noted that the immigrant was not likely to succeed in his quest to have an I-130 filed by his daughter approved because the Department of Homeland Security had already determined that he had engaged in fraudulent marriage. Such a finding would bar the approval of the I-130 filed by his daughter. The 8th Circuit affirmed, finding no good cause for another continuance request.
The full text of Mogeni v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/03/133597P.pdf
