Fighting the U.S. Citizenship & Immigration Service to the Finish and Winning
When the U.S. Citizenship and Immigration Services charges a foreign national with committing marriage fraud – that is, marrying a U.S. citizen or lawful permanent resident for the primary purpose of circumventing the immigration laws – the foreign national must fight the charge and win on appeal to obtain any petition-based immigration benefits or to prevent removal from the United States.
Otherwise, the foreign national is forever barred from becoming a lawful permanent resident, regardless of whether he divorces and later wishes to apply for a green card based on marriage to another U.S. citizen or lawful permanent resident, or sponsorship by a U.S. employer. The strict language of section 204(c)(1) of the Immigration & Nationality Act prohibits CIS from approving any petition if it determines that the foreign national attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
There are two common instances for CIS to issue a marriage fraud finding. One is when a prior spouse, family member or other third party notifies the authorities that the parties’ marriage is fraudulent. The parties would then have to prove that the allegations are false. Another instance is when the U.S. citizen/lawful permanent resident and foreign national begin to live separately after they enter marriage. The parties would then have to prove that the separation is due to marital problems or other legitimate reasons, not because they did not intend to establish a life together at the inception of their marriage.
Igbanugo Partners Int’l Law Firm has in-depth experience with all types of marriage fraud cases and in many instances has fought CIS to the finish and won. In some instances, our clients had consulted with other immigration lawyers who predicted it would be impossible to overcome the CIS’s marriage fraud charge. Knowing the case would be an uphill battle, perhaps taking many years to the resolve, we accepted the challenge and have won on appeal.
In one case, CIS persistently denied a U.S. citizen’s Form I-130 marriage petitions for her foreign national spouse on grounds of marriage fraud. Despite all the documentary evidence showing that the parties shared a residence and commingled their assets and liabilities during their entire marriage, CIS insisted that their marriage was fraudulent based mostly on prior allegations from family members who had personal vendettas against the parties.
The parties filed three consecutive I-130 petitions with the CIS – in July 1995, August 1997 and August 2002. Each time, the CIS denied the petitions, claiming that the parties entered into marriage for the primary purpose of circumventing immigration laws.
Although all but one of the family members recanted their initial marriage fraud allegations, CIS discounted the recantations as not credible and kept denying the petitions. The parties appealed the decision on the first I-130 petition to the Board of Immigration Appeals (BIA), which upheld CIS’s decision. The parties next appealed to the Eighth Circuit Court of Appeals, which found that while there is some evidence to suggest that the marriage was bona fide, the record also had ample evidence for the BIA to conclude that the parties failed to show that their marriage was not fraudulent.
One year after CIS denied the third I-130 petition we filed the parties’ first complaint against CIS with the U.S. District Court of Minnesota, requesting that a federal district judge review their case and declare that CIS’s decision was unlawful. While the complaint was pending, CIS conducted an unannounced visit (“bed check”) of the parties’ residence and found that they were indeed living together. By that time, the parties were married for almost 10 years. A few months later, Judge Ann Montgomery dismissed the complaint without prejudice and remanded the case to CIS to reassess the merits of the I-130 petitions. The judge directed the CIS to conduct a “fresh and searching determination” as to the validity of the petition, considering the ten-year length of the parties’ marriage and the recantations of relatives who had initially claimed that the marriage was fraudulent.
Despite the judge’s instructions, CIS denied the petition upon remand. A couple of months later, we filed the party’s second complaint with the federal district court. One year later, after hearing oral argument from both sides, the judge granted our motion for summary judgment and remanded the case to CIS to approve the I-130 petition. CIS filed an appeal with the Eighth Circuit Court, but subsequently withdrew it after we filed a very strong motion to dismiss the appeal.
In another instance, CIS denied an I-130 petition based largely on the negative characterization of the U.S. citizen petitioner’s personal demeanor at the marriage interview and inferences drawn from a home visit conducted over four years after the marriage took place. CIS adjudicators concluded that the marriage was fraudulent because the beneficiary is a good-looking Egyptian man and the U.S. citizen petitioner was a Native American with alcohol problems. We appealed from the CIS’s decision to the BIA, which found that CIS was unable to clearly establish marriage fraud and thus remanded the case to CIS for a new decision. The BIA strongly recommended that the case be assigned to a different District Adjudications Officer because her decision was “permeated with a personal and unprofessional tone and reflects inappropriate disregard of the relevant law…” A couple months later, CIS approved the I-130 petition.
We also sued CIS in federal court after it revoked the approval of a U.S. employer’s I-140 petition for the foreign national, which allowed an immigration judge to grant him lawful permanent resident status even while the I-130 petition was pending. CIS revoked the approval based on its marriage fraud finding, which no longer holds. The lawsuit is still pending partly because the CIS has yet to reinstate the approval of the I-140, as they must, which will resolve the case once and for all.
A marriage fraud finding is brutal because it forever prohibits a foreign national from obtaining any petition-based immigration benefits in the United States. Nevertheless, case law and regulations provide some relief for those facing a marriage fraud finding. Perhaps recognizing the draconian consequences of a marriage fraud finding, the BIA has held that the evidence of a fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” When CIS fails to follow the BIA’s guidance on this issue, it is possible to fight CIS to the finish and win on appeal, if you hire a dedicated, strong, knowledgeable and persistent immigration attorney.