New York Lawyer's Legal Updates

Fighting Allegations Of Marriage Fraud

Author: Green Card Lawyer Alena Shautsova

A government’s allegation that a person committed marriage fraud for the purposes of avoiding Immigration laws in the United States, permanently bars the non-citizen from any and all Immigration benefits in the United States. Consider a case, where a non-citizen first tries to obtain a green card through fraudulent marriage (as determined by USCIS), and then, years later, marries for real... Do you think there is a way out?

It depends. First, what is going to happen is that USCIS will deny the second, new I-130 immigrant visa petition filed by the new U.S. citizen. The proper means to challenge the denial is to file a lawsuit in the district court under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 703. See Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009); Ruiz v. Mukasey, 552 F.3d 269, 274-76 (7th Cir. 2009).

What happens next is that the district court will review USCIS’ determination of fraud using "substantial evidence" standard. But what is "substantial evidence"? While there is really no clear definition of this standard, the case law says that where there is non-citizen’s own written admission of fraud, the substantial evidence standard will be met. Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008) (admissions that marriage was entered into in exchange for money and access to apartment and vehicle provided "substantial evidence" that marriage was fraudulent); Ghaly v. INS, 48 F.3d 1426, 1431 (7th Cir. 1995) (upholding denial of petition based on sworn statement admitting marriage fraud); Matter of Isber, 20 I. & N. Dec. 676, 679 (BIA 1993) (explaining that spouse’s admission that she married alien as favor to help him obtain permanent residency shows that they "did not intend to establish a life together as husband and wife when they married").

Sometimes, people make these admissions to avoid potential Criminal liability, and later they deeply regret that they did not opt for a Criminal trial. In some cases, it is possible to suppress the confession of marriage fraud, but only when evidence was obtained under circumstances involving "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Lopez-Martinez , 468 U.S. at 1050–51; see Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010); Martinez-Camargo, 282 F.3d at 492; Matter of Toro, 17 I. & N. Dec. 340, 343 (1980).

An alien claiming coercion by government officials "must come forward with proof establishing a prima facie case before the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence." In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975); see Luevano v. Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).In such cases, applicants’ statements will be heavily scrutinized for consistency and timing.

An important note to make is that the regulation, 8 C.F.R. § 103.2(b)(16)(ii), prohibits the agency from basing a determination of statutory eligibility on information that has not been disclosed to the applicant or petitioner. The courts pointed out that "the better procedure" is for agencies to "produce the statement in question," Ghaly, 48 F.3d at 1435, and we are puzzled by USCIS’s continued failure to do so. See id. at 1437 (Posner, J., concurring) (describing refusal to provide statement as "inexplicable, offensive, and absurd, as well as contrary to the INS’s regulations"). This being said, that applicants and practitioners always should insists on production of the "statements" made by "kind souls" who would like to preclude honest applicants from receiving a status in the United States. As the law shows, an applicant is entitled to it!

05 March 2016
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