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Thread: BONA FIDE MARRIAGE DEFINITION AND CASES [READ THIS SWISSNUT]

  1. #1
    "The Act does not define a "good-faith" marriage or provide guidelines for evaluating the bona fides of a marriage; however, persons applying for immigration benefits based on a marriage are generally required to establish that they entered into the marriage in good faith, and a significant body of case law has developed concerning the interpretation of this requirement. It has long been held that a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, cannot be recognized as enabling a spouse to obtain immigration benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 1980). The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage. The person's conduct after marriage is relevant only to the extent that it bears upon his or her subjective state of mind at the time of the marriage. Separation from the other spouse, even shortly after the marriage took place, does not prove, by itself, that a marriage was not entered into in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975)."

  2. #2
    "The Act does not define a "good-faith" marriage or provide guidelines for evaluating the bona fides of a marriage; however, persons applying for immigration benefits based on a marriage are generally required to establish that they entered into the marriage in good faith, and a significant body of case law has developed concerning the interpretation of this requirement. It has long been held that a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, cannot be recognized as enabling a spouse to obtain immigration benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 1980). The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage. The person's conduct after marriage is relevant only to the extent that it bears upon his or her subjective state of mind at the time of the marriage. Separation from the other spouse, even shortly after the marriage took place, does not prove, by itself, that a marriage was not entered into in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975)."

  3. #3
    Aguila, from what source are you quoting?
    Sweet Madame Belu

  4. #4

  5. #5
    Aguila:

    Yes, I too had read that, however, you do need to read carefully the language in this memo. For example
    ...significant body of case law has developed concerning the interpretation of this requirement"...suggests that the interpretation is not absolute.

    It appears that the Immigration Service acknowledges that these sham marriages or fraudulent marriages DO EXIST, but that they must be careful that they do not automatically deny a "spousal petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 1980)."

    Here is the language which is germaine and VERY PERTINENT.." The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage." Now if it can be shown, by evidence as well as significant time lines tht the alien spouse did not intend to establish a life together at the marriage, but rather that he or she was wanting solely to establish his or her rights to remain in the country, then the Immigration Service may consider denying the petition.

    It all depends upon how compelling the information is.

  6. #6
    Did someone from USCIS ever contact you in regards to your husband? How is your divorce/annulment case going?

  7. #7
    Aguila:

    Further info from the BIA on Sham or Fraudulent marriages.....
    Fraudulent Marriages:
    1. Test for determining factually genuine marriage, is at the inception, whether parties intended to establish a life together. Rodriguez v. INS (1st Cir. 2000).
    3. Sham marriages: two types
    (a) bilateral: both spouses marry solely to facilitate immigration (most common).
    (b) Unilateral: feelings deceive other spouse into marriage (Aguila this is the type I am referring to)


    4. INS had crack study come out that said that 30% of immigration marriages were sham marriage (actually it was suspected that 30% were sham, and study was developed for budgetary needs to assess INS workload)
    5. As a result, Immigration Marriage Fraud Amendments of 1986 (IMFA) passed.
    (a) Section 2(a) added new section to INA § 216 introducing the concept of conditional permanent residence --- whenever a noncitizen receives LPR status as an immediate relative, as a family-sponsored second preference immigrant, or as a fiancĂ© of a US citizen, by virtue of a marriage that is less than two years old, the resulting residence subject to certain conditions:
    (b) If at any time during first 2 years Atty. Gen. finds that marriage was entered into for procuring immigrant status or was judicially annulled or terminated (other than by death) or than a fee (other than usual atty. Fee) was given for filing petition, Atty. Gen. must terminate permanent resident status. INA § 216(b)(1)
    (c) Second: conditional residence and his/her spouse have affirmative duty to jointly petition the INS for removal of the condition and to appear at an INS interview in connection with that petition. INA § 216(c).
    (1) Petition for meeting two years after marriage must be filed 90 days before 2 year time limit expires, one way to get around, get married outside of the US for two years, then come in, no longer have to meet requirement. Can also get extension of 90 day time.
    (2) Alien spouse includes fiancés of US citizen, immediate relatives as spouse of US citizen, spouse of LPR, but does not include accompanying or following to join spouse.
    (3) Waivers authorized in some circumstances: extreme hardship (INA § 216(c)(4)(A), entered into marriage in good faith, but terminated due to "extreme cruelty"ť
    (4) Certain restrictions on spouse who terminate one marriage and then marry again. INA § 204(a)(20.
    (5) Can also get paroled by Atty. Gen. under INA § 212(d)(5): does not count as admission, but person allowed in for highly humanitarian reasons.
    6. Section 5 of IMFA made marriage entered into while spouse was in removal proceeding subject to requirement that spouse live outside US for two years, later overturned, weird divorce outcomes, divorce only valid under this new provision if actual hostility, no good if entered into to stay together, public backlash. Now Congress permits affected noncitizens to avoid two year foreign residence requirement by proving the genuineness of their marriages (and certain other facts) by "clear and convincing evidence. Also, if removed, have to ask for voluntary departure, b/c certain restrictions on reentry if actually removed.

  8. #8
    In another thread, this is what Sammy wrote....
    "Don't you know that there is never a guarantee that you will prevail on waiver provisions even if you have zillions of proofs to prove the bonafide of your marriage? Don't you know that BCIS and Courts are interpreting the laws differently when it comes to ask for waiver based upon proving the bonafide of marriage alone? Don't you know that every one can prove the bonefide of their marriage if getting the approval on waiver is so easy based upon bonefide of marriage alone? Don't you know thousands of aliens are being deported each years even though they have zillions of very strong proofs to prove the bonafide of their marriages? I've never seen even a single person in my life who did not come up with thousands of proofs to prove the bonafide of his/her marriage even though the marriage was a fraud marriage, and despite of those solid proofs, they were deported because their waiver petitions were denied.

  9. #9
    and according to INS law itself...
    "(G) Marriage fraud.-An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)) and to be in the United States in violation of this Act (within the meaning of subparagraph (B)) if-

    (i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such entry of the alien and which, within 2 years subsequent to any admission of the alien in the United States, shall be judicially annulled or terminated, unless the alien establishes to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or

    (ii) it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien's marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien's admission as an immigrant. "

  10. #10
    Case Rodriguez:
    But petitioner's most daunting obstacle is the New York judgment of annulment. The judgment itself, terminating the marriage relationship, was enough to invoke the statutory presumption. But this was more than a simple ending of the marriage; it was specifically based upon a finding of fraudulent intent to evade the immigration laws. This was a judgment, the validity of which is not contested, entitled to full faith and credit, and immune from collateral attack. Cf. Gouveia v. INS, 980 F.2d 814, 817 (lst Cir. 1992) (criminal convictions cannot be collaterally attacked in immigration proceedings).

    It created not just a presumption, but a presumption plus. We need not go so far as to say that, under preclusion principles, it is itself dispositive. We need say only that it is very powerful evidence that the original intent was to use marriage as a device to evade the immigration laws. Against this, we cannot say that petitioner's personal and largely unverified protestations of love and the scant written documentation rise to anything approaching a preponderance.

    So holding, we, like the Board, do not give any weight to the affidavits petitioner objects to on the ground that he was not allowed the opportunity to cross examine the affiants.

    The petition for review is denied and the Board's decision is

    AFFIRMED

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