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Thread: Marriage Fraud and I-751 - Couldn't Resist !

  1. #1
    Michael
    Guest
    I found this on this board. Let's see what Aguila and Swissnut have to say about this !...

    The Strict Rules Regarding Marriage Fraud
    by Christina B. LaBrie
    US immigration law contains very strict provisions regarding fraudulent marriages. If an individual is found to have entered into a fraudulent marriage, all subsequent visa petitions on behalf of that person must be denied. There is no room for discretion in this draconian aspect of the law. This issue may arise for individuals who have filed a green card application in the past based on marriage to a US citizen, subsequently are divorced and later wish to file a green card application based on marriage to another US citizen on based on an employment petition. If the first petition was denied because of suspected marriage fraud, the subsequent petition will often be summarily denied.

    The strict language of the marriage fraud laws may lead one to believe that there is no relief from such a summary denial. However, case law and regulations provide some protection for those facing a prior finding of marriage fraud. Perhaps in recognition of the serious consequences of a finding of marriage fraud, the Board of Immigration Appeals has held that the prior finding must be examined and not merely accepted as the final word. Where the USCIS fails to follow to the Board's guidance on this issue, it is possible to challenge what may appear to be a decision set in stone.

    Pursuant to INA §204(c)(1), no visa petition may be approved under INA §204 if the "alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws..." In notifying applicants of a denial based on INA §204, the USCIS often simply refers to the prior finding of marriage fraud as the basis for the denial without further explanation.

    In order to comply with relevant regulations and case law, however, the USCIS must engage in greater analysis of the prior finding of marriage fraud. The Board of Immigration Appeals has held that the evidence of a fraudulent marriage "must be documented in the alien's file and must be substantial and probative." Matter of Tawfik, 20 I&N;Dec. 166, 167 (BIA 1990). With regard to denials based on a prior finding of marriage fraud, the BIA stated the following: "the district director should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him." Id. at 168; see also Matter of Samsen, 15 I&N;Dec. 28, 29 (BIA 1974). Therefore, a simple restatement of the prior determination, absent any independent conclusion based on the evidence in the record, is not sufficient under Tawfik.

    It is only appropriate for the District Director to rely on a prior finding of a fraudulent marriage where the beneficiary has previously been found deportable for having procured a visa by fraud, that is, where a fraud charge was sustained in immigration court proceedings. Such a finding "inherently involves a factual determination based on clear, unequivocal, and convincing evidence, that that respondent engaged in fraudulent conduct by entering a ˜for the purpose of procuring his...entry as an immigrant.'" Matter of Agdinaoay, 16 I&N;Dec. 545, 547 (BIA 1978). A prior administrative finding, however, does not inherently involve a factual determination based on "clear, unequivocal, and convincing evidence," and thus cannot be relied upon absent an independent conclusion.

    If an independent conclusion was, in fact, made by the USCIS, the parties must be informed of the basis for the conclusion. The evidence relied upon should be referenced in and included with the decision to provide the parties an opportunity to properly respond. Furthermore, federal regulations require that if a decision adverse to an applicant, "is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and officer an opportunity to rebut the information..." 8 C.F.R. §103.2(b)(16)(i). If the USCIS decision relies on derogatory information unknown to the parties, it must be described in the decision in order to comply with the regulations.1

    Without a detailed description of the basis for the District Director's intent to revoke the petition, it is often difficult to determine whether a decision complies with the "substantial and probative evidence" requirement of Tawfik, supra. It is similarly difficult to determine whether the decision was an "abuse of discretion." See 5 U.S.C. §706(2)(A)(setting forth the standards for review of an agency decision by a reviewing court). A court may find that such an abuse has not occurred where the factual findings underlying the decision are supported by "substantial evidence." See Ghaly v. INS, 48 F.3d 1426 (7th Cir. 1995).

    The Board of Immigration Appeals and federal courts have held that a statement by the petitioner or the beneficiary affirmatively stating that a marriage was entered into for the purpose of evading immigration law may be sufficient evidence to satisfy the standards set forth in case law and in statutes. See Ghaly, supra, at 1433; Oddo v. Reno, 17 F. Supp. 2d 529, 532 (E.D. Va. 1998); Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974, *3 (N.D.Ca. 1992); Matter of Kahy, 19 I&N;Dec. 803, 805 (BIA 1988). On the other hand, the fact that the petitioner and the beneficiary were not living together at the time of the visa petition denial is not evidence of a fraudulent marriage. See Tawfik, supra, at 169.

    It is important for visa applicants to be aware that a petition denial based on prior marriage fraud must meet the requirements described above. If not, there is a basis to challenge the decision or to request an independent finding based on evidence in the record and additional evidence submitted by the applicants.



    --------------------------------------------------------------------------------
    1An exception exists under this disclosure requirement for classified information. See 8 C.F.R. §103.2(b)(16)(iii), (iv).



    --------------------------------------------------------------------------------

    About The Author

    Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.

  2. #2
    Michael
    Guest
    I found this on this board. Let's see what Aguila and Swissnut have to say about this !...

    The Strict Rules Regarding Marriage Fraud
    by Christina B. LaBrie
    US immigration law contains very strict provisions regarding fraudulent marriages. If an individual is found to have entered into a fraudulent marriage, all subsequent visa petitions on behalf of that person must be denied. There is no room for discretion in this draconian aspect of the law. This issue may arise for individuals who have filed a green card application in the past based on marriage to a US citizen, subsequently are divorced and later wish to file a green card application based on marriage to another US citizen on based on an employment petition. If the first petition was denied because of suspected marriage fraud, the subsequent petition will often be summarily denied.

    The strict language of the marriage fraud laws may lead one to believe that there is no relief from such a summary denial. However, case law and regulations provide some protection for those facing a prior finding of marriage fraud. Perhaps in recognition of the serious consequences of a finding of marriage fraud, the Board of Immigration Appeals has held that the prior finding must be examined and not merely accepted as the final word. Where the USCIS fails to follow to the Board's guidance on this issue, it is possible to challenge what may appear to be a decision set in stone.

    Pursuant to INA §204(c)(1), no visa petition may be approved under INA §204 if the "alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws..." In notifying applicants of a denial based on INA §204, the USCIS often simply refers to the prior finding of marriage fraud as the basis for the denial without further explanation.

    In order to comply with relevant regulations and case law, however, the USCIS must engage in greater analysis of the prior finding of marriage fraud. The Board of Immigration Appeals has held that the evidence of a fraudulent marriage "must be documented in the alien's file and must be substantial and probative." Matter of Tawfik, 20 I&N;Dec. 166, 167 (BIA 1990). With regard to denials based on a prior finding of marriage fraud, the BIA stated the following: "the district director should not give conclusive effect to determinations made in a prior proceeding, but, rather, should reach his own independent conclusion based on the evidence before him." Id. at 168; see also Matter of Samsen, 15 I&N;Dec. 28, 29 (BIA 1974). Therefore, a simple restatement of the prior determination, absent any independent conclusion based on the evidence in the record, is not sufficient under Tawfik.

    It is only appropriate for the District Director to rely on a prior finding of a fraudulent marriage where the beneficiary has previously been found deportable for having procured a visa by fraud, that is, where a fraud charge was sustained in immigration court proceedings. Such a finding "inherently involves a factual determination based on clear, unequivocal, and convincing evidence, that that respondent engaged in fraudulent conduct by entering a ˜for the purpose of procuring his...entry as an immigrant.'" Matter of Agdinaoay, 16 I&N;Dec. 545, 547 (BIA 1978). A prior administrative finding, however, does not inherently involve a factual determination based on "clear, unequivocal, and convincing evidence," and thus cannot be relied upon absent an independent conclusion.

    If an independent conclusion was, in fact, made by the USCIS, the parties must be informed of the basis for the conclusion. The evidence relied upon should be referenced in and included with the decision to provide the parties an opportunity to properly respond. Furthermore, federal regulations require that if a decision adverse to an applicant, "is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and officer an opportunity to rebut the information..." 8 C.F.R. §103.2(b)(16)(i). If the USCIS decision relies on derogatory information unknown to the parties, it must be described in the decision in order to comply with the regulations.1

    Without a detailed description of the basis for the District Director's intent to revoke the petition, it is often difficult to determine whether a decision complies with the "substantial and probative evidence" requirement of Tawfik, supra. It is similarly difficult to determine whether the decision was an "abuse of discretion." See 5 U.S.C. §706(2)(A)(setting forth the standards for review of an agency decision by a reviewing court). A court may find that such an abuse has not occurred where the factual findings underlying the decision are supported by "substantial evidence." See Ghaly v. INS, 48 F.3d 1426 (7th Cir. 1995).

    The Board of Immigration Appeals and federal courts have held that a statement by the petitioner or the beneficiary affirmatively stating that a marriage was entered into for the purpose of evading immigration law may be sufficient evidence to satisfy the standards set forth in case law and in statutes. See Ghaly, supra, at 1433; Oddo v. Reno, 17 F. Supp. 2d 529, 532 (E.D. Va. 1998); Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974, *3 (N.D.Ca. 1992); Matter of Kahy, 19 I&N;Dec. 803, 805 (BIA 1988). On the other hand, the fact that the petitioner and the beneficiary were not living together at the time of the visa petition denial is not evidence of a fraudulent marriage. See Tawfik, supra, at 169.

    It is important for visa applicants to be aware that a petition denial based on prior marriage fraud must meet the requirements described above. If not, there is a basis to challenge the decision or to request an independent finding based on evidence in the record and additional evidence submitted by the applicants.



    --------------------------------------------------------------------------------
    1An exception exists under this disclosure requirement for classified information. See 8 C.F.R. §103.2(b)(16)(iii), (iv).



    --------------------------------------------------------------------------------

    About The Author

    Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.

  3. #3
    Michael
    Guest
    I like this part the best...

    "The Board of Immigration Appeals and federal courts have held that a statement by the petitioner or the beneficiary affirmatively stating that a marriage was entered into for the purpose of evading immigration law may be sufficient evidence to satisfy the standards set forth in case law and in statutes."

  4. #4
    Why do they get a <i>second<i> chance at marriage after the first suspected marriage fraud? Wouldn't they have ultimately been deported?
    Sweet Madame Belu

  5. #5
    Michael
    Guest
    Because this is America, Land of the lawyers and home to the stupid. We give everyone a second chance; rapists, murderers, terrorists, illegals. Before they are deorted they can make a case before a judge. I suspect that BCIS usually wins or at least the illegal has to pay a lot in legal expenses.

  6. #6
    Michael
    Guest
    And this is saying that they will NOT get a second chance at marriage. If they commit marriage fraud the first time, a second marriage, regardless of how bonafide, they will never get a green card.

  7. #7
    Michael:

    I am sorry to tell you this buddy but YOUR WIFE WILL GET AWAY WITH IMMIGRATION. Because if your wife's I-751 is not approved it doesn't mean that her marriage was fraudulent one unless they have something really material to prove that. Remember as this article clearly states in order to deny an immigrant visa based upon a second marriage, USCIS must prove that the first marriage was fraudulent, and they have to prove it by 'clear, unequivocal, and convincing evidence'.

    I also remember that you mention that your wife is pregnant now, which is a really heavy thing when it comes to prove a bona fide marriage.

    But regardless of what happen with the outcome of your wife's immigration petitions you should just let go!

  8. #8
    Michael
    Guest
    I never said she was pregnant you knucklehead but if she is it is with her new husband not by me so it doesn't count. Thats the point of this article Believe me, I have PLENTY of evidence that it was a fraud including her confession and several other things including documented fraud, blackmail and extortion. And this article seems to imply that my testimony would carry some weight. I am not going to disclose what I have on her because I realized the other day that it is possible that her or her attornry could be reading this board. I am not going to reveal what I have but I know everything and I can prove everything that I know. It gives me hope. At the very least, it will cause some more difficulty for her.

  9. #9
    Michael:

    First of all, you are a complete A S S H O L E, I hope you will never find a good woman, because you do not DESERVE ONE.

    If your ex-wife is pregnant of course it matters, specially if her new man is the father and not you! why would it help her having a baby with you. It will help in an eventual AOS process to prove bona fide marriage if she can't remove conditional status on her current residence status.

    Unfortunately, when she sent a waiver I-751 what you have it doesn't matter! you are out of the picture in the process. Of course as a bitter man you are, you could send copies of all those documents to many USCIS places to see if they act upon that, but then this matter could end on Immigration Court, or even Federal Court, and if you to an extent agreed with her scheme then you might be in trouble too... and if not forget about marrying another foreigner and getting her a gc to stay with you.

    Move on man...you are acting like a kid...and I do not your replies because I will not answer you back ever again.

  10. #10
    Michael
    Guest
    If BCIS proves fraud, then she is barred for life from getting a green card.

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