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    Vonnell C. Tingle

    Copyright 1989 by the University of Louisville; Vonnell C. Tingle

    The Immigration Marriage Fraud Amendments of 1986 [FN1] (the Amendments) were passed by Congress to deter immigration-related marriage fraud. Because long waiting periods exist before entry for all other immigrant categories, the avenue of marrying an American citizen was found to be the simplest and quickest way of immigrating to this country. [FN2] Aliens who marry United States citizens are classified as "immediate relatives"' and are admitted without being subject to numerical quotas as are other classes of immigrants [FN3] under the Immigration and Nationality Act (the Act). [FN4] This preference for immediate relatives is based upon a long-standing congressional policy of facilitating the reunification of families. [FN5] However, the process became subject to abuse whereby "sham"' marriages were entered into solely to obtain the immigration benefit.
    Detection of sham marriages has presented difficulties for the Immigration & Naturalization Service (the Service), which is charged with implementing the provisions of the Act. [FN6] Because of lack of manpower, inadequate enforcement, loopholes in the Act, and judicial constraints by lower federal courts, the Service appealed to Congress for assistance in amending the law to prevent immigration marriage fraud. [FN7]
    This Note is primarily concerned with marriages entered into shortly before application for permanent resident status. [FN8] The Note will explore the sham marriage problem and the reasons for Service requests to Congress for more definite guidelines to aid in identifying "viable"' marriages under immigration law. This Note will then discuss the provisions of the Amendments, specifically the requirement of a two year conditional period before permanent resident status may be granted. This period may be an effective initial deterrent to sham marriages but poses some problems for valid but less than customary unions. One question is whether this two year period will be interpreted as "'locking"' the parties into marriage, i.e., they must maintain a traditional marital lifestyle for that length of time. In conclusion, this Note contends that the Immigration Marriage Fraud Amendments reveal that the primary intent of Congress was to deter sham marriages and that Congress was unwilling to statutorily overrule prior judicial constraints on Service efforts to establish a viability requirement for marriages between citizens and aliens.


    A. Scope of the Problem
    A sham or fraudulent marriage under immigration law is a marriage contracted for the sole purpose of evading the numerical restrictions that otherwise limit immigration into the United States. In Lutwak v. United States [FN9] the Supreme Court stated that "Congress did not intend to provide aliens with an easy means of circumventing the quota system by fake marriages in which neither of the parties ever intended to enter into the marital relationship . . . . " [FN10]
    Service statistics show that between 1978 and 1984 the number of immigrants acquiring status as spouses of United States citizens increased 43 as compared to a total immigration drop of 9.6. [FN11] The Service estimated that 30 of these spousal relationships were fraudulent. [FN12] Furthermore, Congress was made aware of the problem by the Service's discovery of numerous marriage fraud rings around the country [FN13] and national media attention. [FN14]
    There are generally two types of sham marriages. [FN15] One is the collusive or "contract"' marriage whereby a citizen agrees to marry an alien solely to enable the alien to achieve permanent resident status. [FN16] There is usually a fee involved for the citizen and an understanding that the marriage will be dissolved soon after the permanent resident status is obtained by the alien. [FN17] The more blatant cases of this type of fraud have involved marriage "rings"' whereby citizen "spouses"' are supplied along with bogus documents. [FN18] The second type of sham marriage is a unilateral or "one-sided"' marriage whereby the alien deludes a citizen into the marriage, and upon receipt of derivative status the alien abandons the citizen spouse. [FN19]

    B. Pre-Amendment Procedures
    Under the Act the process for obtaining permanent resident status for the alien spouse begins when the citizen spouse petitions the Service for such classification after the marriage. [FN20] Simultaneously with this petition, the alien spouse applies for adjustment of status to that of permanent resident, and the Service is given the discretion to grant such status. [FN21] The petition is accompanied by proof of the marriage and, if applicable, proof of dissolution of any prior marriages. [FN22] Along with the petition, the Service usually conducts a separate interview with each spouse, essentially in an effort to uncover any sham marriages, and subsequent investigation if the Service determines it is needed. [FN23] The Service is aided by a statutory presumption that any marriage entered into within two years before the petition is assumed to be fraudulent. [FN24] Based upon the petition and the interview, the Service officer makes an initial determination whether the facts in the petition are true [FN25] and approves or disapproves permanent resident status for the alien spouse. [FN26] If the petition is approved, the alien spouse is granted the permanent resident status and obtains the coveted "green card."' [FN27] In three years the alien spouse would be eligible for naturalization as a United States citizen, in contrast to a five year wait by other immigrants. [FN28] If the Service officer refuses the petition on the ground that the marriage was fraudulent, the alien spouse may be subject to deportation. [FN29]
    However, if the marriage is a sham marriage and this fact is not discovered at the time of the initial petition and interview, there is usually no subsequent investigation of the marriage to uncover the fraud unless either one of the spouses or another party reports this fact to the Service. [FN30] Since most of these marriages are fairly recent, there is often little or no marital lifestyle to evaluate for clues as to whether the marriage is a sham or not. [FN31] Furthermore, there is evidence that insufficient manpower has also hampered the Service in uncovering sham marriages at this threshold level. [FN32]
    The Act itself contains no statutory definition of "marriage"' that would aid the Service in evaluating a marriage under immigration law. [FN33] The only foundation for a definition of marriage under immigration law was formulated in Lutwak wherein the Supreme Court, in construing a statute analogous in purpose to the Act, stated: "The common understanding of a marriage, which Congress must have had in mind when it made provision for 'alien spouses' in the War Brides Act, is that the two parties have undertaken to establish a life together and assume certain duties and obligations."' [FN34] The Court further stated that the parties must have had the good faith "intention to marry and consummate the marriage even for a day."' [FN35] Therefore, there was a considerable burden of proof on the Service to find evidence of and prove that there was no such intent at the time the marriage was established.

    C. Service Efforts to Solve the Problem
    To uncover any sham marriage at the threshold level, the Service subjects the initial request for adjustment of status to closer scrutiny within its discretionary power to investigate the facts alleged by the parties. [FN36] The extent and quality of such interviews and subsequent investigations have been the subject of much criticism on constitutional grounds as invasions of privacy. [FN37] In an effort to reveal whether or not the marriage is a sham, the Service conducts separate interviews with each spouse wherein questions are posed regarding marital lifestyle. However, in many instances the questions have often concerned more intimate aspects of the couple's marriage, in effect, amounting to invasions of marital privacy. [FN38]
    The Supreme Court has generally granted limited judicial review of Service practices, deferring to what it sees as congressional plenary power to supervise aliens. [FN39] However, the lower federal courts have acted to restrain the Service in this area by requiring a greater amount of due process and mandatory avoidance of questions regarding intimate details of the marital relationship. [FN40]
    Another method used by the Service to investigate whether a marriage is bona fide for immigration purposes was to require that the marriage be "viable"'. [FN41] A marriage under immigration law must first be valid according to the law of the place where it was celebrated. [FN42] Secondly, the marriage must be valid under immigration law, i.e., the parties must intend to establish a life together. [FN43] A sham marriage may be legal according to state law, for instance, but illegal for immigration purposes.
    In In re Lew [FN44] the Board of Immigration Appeals (BIA) denied permanent resident status to an alien spouse who had applied for adjustment of status under the Act while the marriage was subject to an interlocutory divorce decree. The BIA denied the request on the grounds that a "bona fide husband and wife relationship"' did not exist in fact as well as in law, since the objective of Congress in the Act was the preservation of the family unit. [FN45] Although the BIA did not articulate the elements of a "bona fide marriage"' under immigration law, the inference was that it should conform to a traditional American marriage where husband and wife live together and assume the customary marital roles and duties. [FN46] The Service appeared to feel that, although such a marriage may not have been fraudulent from the beginning, it was less than "perfect"' and should be treated the same as a sham marriage.
    However, ten years later in a case where the parties were married but separated, the Ninth Circuit Court of Appeals in Bark v. Immigration & Naturalization Service [FN47] held that evidence of separation of the parties is insufficient by itself to prove that a marriage was not bona fide when it was celebrated. [FN48] The court concluded that "[a]liens cannot be required to have more conventional or more successful marriages than citizens . . . . Conduct of the parties after marriage is relevant only to the extent that it bears upon their subjective state of mind at the time they were married."' [FN49] The court recognized that married couples may separate temporarily or permanently for any number of reasons. [FN50] The key issue is whether they really intended to establish a life together at the time of their marriage. [FN51]
    Nevertheless, the Service declined to follow the ruling in Bark and continued to maintain that a marriage must be viable in order for the alien spouse to obtain permanent resident status. [FN52] However, following the ruling in Chan v. Bell [FN53] the BIA in In re McKee [FN54] accepted the courts' mandate that, if the spouses were living apart and there was no evidence of lack of intent to make a life together at the inception of the marriage, the Service could not deny the benefit solely because the parties were living apart. [FN55] The court in Chan saw no reference in the Act to marriage viability or solidity and criticized the Service's construction of the statute as vesting "in that agency an unreasonably wide, and essentially unreviewable, discretion to determine which marriages are or are not viable."' [FN56] Furthermore, the court recognized that the Service has no expertise in "predicting the stability and growth potential of marriages,"' and discounted the Service's interpretation of congressional purpose in reunification of families as allowing determinations as to which marriages "are entitled to full faith and credit and which ones are not."' [FN57] Once the allegations in the petition are found to be true, the Service's role is to grant the permanent resident status for the alien spouse. [FN58] Thus, the Service could not use a viability standard when judging whether to grant the preferred status to the alien spouse. If the Service felt that the marriage was a sham, it had to prove lack of intent by the parties to make a life together at the time of the marriage.

    D. Service Appeals to Congress
    In the face of apparent increases in sham marriages and the amount of judicial constraint upon its efforts to expose such marriages, the Service appealed to Congress for changes in the Act that would make its job easier in deterring and detecting marriages entered into solely to evade the immigration laws. Among the Service's requests was a statutory definition of marriage with specific indicia, such as cohabitation after marriage and viability of the marriage at the time the permanent resident status is accorded. [FN59] In the latter case, the Service requested an affirmative "viability"' standard, not just the absence of a final divorce or annulment decree. [FN60]
    Other requests by the Service included: 1) a two year conditional waiting period before the permanent resident status would be accorded, with criteria for the Service to determine at the end of that period whether the marriage was a sham; [FN61] 2) placing the burden of proof on the alien to prove the marriage was not fraudulent, without "intent at the time of marriage"' as an "'ameliorating factor;" [FN62] and 3) increasing the criminal penalties for immigration marriage fraud. [FN63]
    However, some commentators maintained that better enforcement of existing law was the answer to the sham marriage problem. [FN64] Specific objections to the Service's proposed two year conditional period included increased workload for an already understaffed Service, [FN65] creating less-favored status for alien/citizen marriages [FN66] and "locking-in"' parties to what could become an intolerable relationship. [FN67]

    One of the major problems confronting Congress in amending the Act to deter immigration marriage fraud was to ensure there would be no corresponding infringement upon the rights of law abiding spouses. [FN68] A provision that deterred sham marriages but simultaneously crippled honest marriages would not be in keeping with the overall purpose of family reunification. With this in mind, Congress passed the Amendments that establish a deterrent in a two year conditional requirement but that fall short of providing the Service with the indicia for a viable marriage which it sought.
    Among the provisions of the Amendments designed to prevent marriage fraud, [FN69] the major change established by Congress is a two year conditional status for the alien spouse following the initial petition for immediate relative classification. [FN70] To remove this conditional status and obtain the permanent resident classification, the spouses must petition the Service and appear for a personal interview with a Service officer within ninety days before the expiration of the two year period. [FN71] Failure to file this petition or have the interview will result in termination of the alien's status and a deportation proceeding. [FN72]
    However, if the spouses make timely application, they must state in the petition that: 1) the marriage is valid under the laws of the jurisdiction where celebrated; 2) the marriage has not been "judicially annulled or terminated;" 3) the marriage was not entered into solely to obtain an immigration benefit; [FN73] and 4) no fee or other consideration was given, excepting attorney's fees, in filing the petition. [FN74] Furthermore, the petition must contain the addresses of actual residences and the names of employers for each spouse since the original filing date two years before. [FN75] Within ninety days of the date of the interview, the Service will determine whether the facts and information in the petition are true with respect to the qualifying marriage. [FN76] If the determination is positive, the conditional basis is removed and the alien spouse is admitted to permanent resident status. [FN77]

    A. Deterrent Effect on Sham Marriages
    The requirement of a two year conditional period can be seen as an effective deterrent at the threshold to both types of sham marriages. [FN78] In the collusive marriage the marital relationship is often judicially terminated soon after the alien spouse acquires the immigration benefit. It is unlikely that a citizen spouse in such a marriage would be willing to defer the divorce and enter into a marriage for a full two years. Also, the fee likely to be demanded for a longer marriage would probably be more than the alien would be able or want to pay. In the case of a unilateral marriage, two years of "keeping up appearances"' may be more than the alien would be able to manage. If he or she abandoned the citizen spouse, it would be good evidence, in spite of lack of judicial termination, for fraudulent marriage intent.
    However, could the parties to a sham marriage simply refrain from divorce, live apart, and maintain to the Service after the two years that they are only having marital difficulties and there is still a chance of reconciliation under the Bark rationale? [FN79] In dictum the court in Bark stated: "Of course, the time and extent of separation, combined with other facts and circumstances, can and have adequately supported the conclusion that a marriage was not bona fide."' [FN80] For instance, if the Service should find that the spouses have been separated a long time and that they have no other accoutrements of marriage (such as joint ownership of property, insurance policies, joint bank accounts, etc.), [FN81] the Service may have sufficient facts and circumstances to prove that the marriage was not entered into with the intent to establish a life together. Furthermore, even if a couple in a sham marriage kept up "'appearances"' for the two year period, they could still be subject to recission or deportation proceedings if there was a determination of fraud after the two years. [FN82]

    B. Potential Problems for Good Faith Marriages
    Concurrently with its deterrent effect on sham marriages, the lapse of time provided in the two year conditional period gives the Service more of a marriage to judge. Also, now more of the burden of proving that the marriage is bona fide rather than sham is shifted to the citizen and alien spouses. [FN83] The Service's job will be made easier where a marriage which did not last the two year period would be presumptively fraudulent and improper. [FN84] On the other hand, where sufficient evidence is contained in the petition showing the parties are still living together and have a customary marital relationship, streamlined approval procedures without the necessity for interviews or investigations may become normal practice. [FN85]
    However, the family law practitioner should be aware of possible problems peculiar to a marriage where the alien spouse holds permanent resident status on a conditional basis. Since the burden is on the petitioning spouses to make timely petition during the ninety day period before the two years expire, [FN86] the attorney for the spouses should calendar the appropriate date to aid her clients in meeting this requirement deadline. Failure to timely file the petition and have the personal interview may result in termination of the permanent resident status and, ultimately, deportation of the alien spouse. [FN87]
    Likewise, an attorney must be aware of the important effect a judicial termination will have on a citizen/alien marriage subject to the two year period. Not only would the marriage be ended, but the status of the alien spouse would automatically terminate and subject the spouse to deportation. [FN88]
    Furthermore, judging by the Service's actions in the past, those marriages in which the parties are living apart will engender greater scrutiny and level of proof that the marriage was not fraudulent under the immigration law. For example, a legal separation might qualify as a "judicially terminated"' marriage. Before the Amendments, the BIA held in In re Lenning [FN89] that a legal separation which in essence terminated the marriage relationship was effective to deny the alien spouse permanent resident status. [FN90] The Board quoted the Chan court, which stated that "[i]t is equally undisputed that, although the parties now live apart, no divorce or legal separation has taken place and no proceedings for divorce or legal separation have been instituted."' [FN91] In the Lenning case the legal separation was described as a "conversion divorce"' with a written separation agreement convertible without further judicial action into an absolute divorce. [FN92] Specifically the agreement stated in part that "each party agrees that he or she will not . . . seek to compel the other party to cohabit or dwell with him or her or institute any proceedings for the restoration of conjugal rights."' [FN93]
    The dissent in Lenning stated that "the marital bond is not dissolved by mere separation . . . " and that a legal separation is not an irreversible course toward marital termination. [FN94] Historically, legal separation or divorce from bed and board was not a dissolution of the marriage bond. [FN95] Whether a legal separation will be seen as a "judicial termination"' by the Service may ultimately depend on how the legal separation agreement is worded.
    Potential problems also may arise where the alien spouse married the citizen spouse in good faith but is forced by necessity to live apart due to abuse by the citizen spouse. If during the two year period the alien spouse felt compelled to obtain a divorce, the alien spouse may become subject to deportation under the Amendments.
    However, the Amendments include a provision empowering the Service to grant a discretionary hardship waiver to remove the conditional status where the alien spouse has not met the requirements of timely petition and personal interview within the ninety day period. [FN96] In order to receive such consideration, the alien spouse must prove that 1) extreme hardship would result if deported, or 2) "the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated . . . by the alien spouse for good cause and the alien was not at fault in failing to meet the requirements . . . . " [FN97] It thus appears that Congress foresaw the need for equitable relief where the alien spouse may be a victim of circumstance and therefore agreed with the Bark court, which stated that "[a]liens cannot be required to have more conventional or more successful marriages than citizens."' [FN98]
    Notwithstanding this waiver provision, the definition of "termination by the alien spouse for good cause"' might require the Service to make an assessment of relative fault in the marriage. The Marriage Fraud Amendment Regulations [FN99] state that in considering a waiver request for "good cause,"' the director "'shall consider evidence relating to the amount of commitment by both parties to the marital relationship."' [FN100] This may include evidence of combined financial assets and liabilities, length of cohabitation after marriage, or the grounds for the termination of the marriage. [FN101] Under the last, the regulations state that a court's determination of fault in divorce proceedings shall not be deemed conclusive evidence that the alien sought termination of the marriage for good cause, nor shall a no fault determination by a court be conclusive of good cause. [FN102] In the case of a no fault decree, it is reasonable that the director would find this inconclusive as to good cause. In those states that have eliminated fault grounds for divorce, a showing of relative fault will be difficult if the evidence consists of the divorce decree alone. One commentator has suggested ways of fleshing out the divorce record in such a case to provide a better evidenciary record for "good cause"' that will be needed later in an immigration proceeding. [FN103]
    However, it can be argued that in ignoring a state court's conclusions of fault in a divorce action, the Service is once again treading in the area of domestic relations where it has no expertise or authority to act. On the other hand, in promulgating this standard the Service may be guarding against the situation where there is a sham marriage and the parties join in a collusive divorce, hoping that a court's finding of fault on the part of the citizen spouse will enable the alien spouse to automatically receive a waiver for good cause. Furthermore, it can be argued that looking into the background of a fault decree is not a redetermination of fault but a legitimate inquiry where a waiver for good cause is requested.

    C. Absence of a Viability Requirement
    It is important to determine whether the Amendments, through the requirement of a two year conditional status, supply the viability requirement that the Service sought and has heretofore been denied by the judiciary. The Amendments do not contain a specific definition or list of indicia of a "bona fide"' marriage for immigration purposes. Congress' purpose in not providing this definition can be interpreted as a recognition of the validity of the courts' criticism of the Service's viability requirement. In fact, the court in Chan warned that any enactment by Congress to establish a definition of marriage in terms of viability for immigration purposes "would subvert traditional modes of domestic relations law and would thus raise substantial constitutional problems."' [FN104]
    The only definition of marriage that was established by immigration case law before the Amendments was that the marriage not be "judicially annulled or terminated."' [FN105] This requirement is reiterated in the Amendments. [FN106] Before the Amendments, the Act provided that there was a presumption of fraud if the marriage was entered into less than two years prior to the petition and less than two years afterwards was judicially annulled or terminated. [FN107] This was left unchanged. Also, there was a contingency for determining whether the marriage had been so terminated; the Act under the requirements for naturalization provides the Service with a "second look"' to uncover any terminations. [FN108] Furthermore, the "intent at time of marriage"' standard established by the courts was not statutorily eliminated by Congress and remains part of the Service's burden of proof in attacking a marriage as fraudulent. [FN109]
    It may be possible that, in implementing the two year period, the Service will find an analogy in the three year period required before the alien spouse can apply for naturalization as a United States citizen. This provision in the Act specifically requires that the alien spouse must have been "living in marital union with the citizen spouse"' during the three years before the petition for naturalization is filed. [FN110] The court in In re Omar [FN111] held that "marital union"' means "simply living in the status of a valid marriage,"' and that a relatively short separation did not invalidate the marriage for naturalization purposes. However, another court has subjected the marital union requirement to a stricter construction. The court in In re Kostas [FN112] saw that, in granting a shorter waiting period for alien spouses than for other immigrants, it was the expectation of Congress "that a non-citizen spouse who lived in close association with a citizen spouse for three years would more speedily absorb the basic concepts of citizenship than one not so situated,"' and that "a close continued marital association"' was intended. [FN113]
    Criticizing this construction, the court in In re Olan [FN114] maintained there was no legislative history to support a finding of such Congressional intent and that inquiries into the integrity of the marital relationship would be intolerable invasions into the privacy of the marriage and the family unit. [FN115] However, a more recent opinion in In re Bashan [FN116] stated that "the Kostas court's interpretation reflects the most likely Congressional intent because to reward the mere existence of marriage instead of a 'close continued marital association' would be to encourage sham marriages arranged solely to obtain citizenship."' [FN117]
    In the Omar and Olan cases the parties were separated for a short period during the three years, whereas in Kostas there was evidence that the parties had not lived together for as much as an entire year out of the three. In Bashan, however, the parties had been separated less than six months when the naturalization petition was made. Thus, the Service could argue that the intent of Congress to facilitate acclimatization of the alien spouse is also relevant to the two year conditional requirement established by the Amendments and that a close continued marital association is mandated. However, since there is a conflict among the courts regarding this construction and no specific statutory authority, the Service may not be able to substitute this interpretation for the lack of a viability standard in the Amendments.
    Looking at the Amendments as a whole, it is clear that Congress' primary aim in establishing the conditional period was to deter sham marriages by making marriage to a citizen one of the least attractive vehicles for fraudulently immigrating into this country. Any "viability standard"' found in the Amendments is merely a restatement of the requirement under the Act that the marriage not be judicially terminated at the end of the two years. [FN118] Furthermore, Congress endeavored to ensure that good faith marriages will not be adversely affected. [FN119] Besides the main purpose of deterring sham marriages, the conditional period secondarily supplies the Service with more of a marriage to judge and a lesser investigatory burden. It will remain for the Service to use this period effectively in revealing fraudulent marriages and fairly in accommodating good faith marriages. Without express statutory standards, the Service should not endeavor to use the conditional period as a vehicle for "'locking in"' a couple to a Service-approved marital lifestyle, as it may once again run afoul of the courts if it should do so.

    True to their name, the Immigration Marriage Fraud Amendments of 1986 were primarily designed to deter sham marriages. The two year period promulgated thereunder should be an adequate deterrent against sham marriages at the threshold level, providing a warning to the parties that a short term marriage of convenience will no longer provide the simplest method for immigrating into this country.
    At the end of the two year conditional period, the manner in which the Service interprets its function in assessing marriages for immigration purposes is of great importance. Congressional omission from the Amendments of a marriage viability requirement can be seen as a warning to the Service not to encroach on an area traditionally left to the states and a recognition of the validity of judicial criticism of the Service overstepping its authority by operating in the field of domestic relations.
    Although a marriage that has been judicially terminated will be held presumptively fraudulent and a traditional marital union may be summarily approved, those unions that do not fit the traditional model may be subject to greater scrutiny and greater level of proof that they are not sham. In this context prior case law can provide a guide as to the possible treatment of such marriges for immigration purposes.
    Rather than "lock-in"' the parties to a marriage, i.e., require that the marriage must conform to the traditional model, the conditional period's primary function is to "lock-out"' the fraudulent marriage from the beginning. Any potentially harsh effects on good faith marriages are ameliorated by judicial interpretations that require that citizen/ alien spouses cannot be required to have more conventional marriages than average citizens. The Amendments give the Service the tools to prevent sham marriages. At the same time, however, the Amendments serve to protect good faith marriages under immigration law, thereby furthering the congressional aim of family reunification through the preferential treatment of alien spouses of United States citizens.
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