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Wednesday, November 28, 2012

Marriage Fraud and INA 212 - or 237(a)(1)(H)

Marriage fraud is more common than most folks think. Application for US Citizenship and green-card status (LPR) is a long, painful road. Marriage offers a relatively rapid acceptance into the USC/LPR ranks, and is therefore extremely tempting from a fraud persepctive.

To defeat a claim of marriage fraud, some of our clients have actually attempted to to bribe their respective former spouse to recant his/her statement to USCIS that the marriage was fraudulent. Usually, it is the sworn statement of one or the other spouse that gives rise to a fraud claim. Of course, our law firm starts singing loudly at that point and covering our ears..one can never condone such conduct (perpetuating fraud and all). However, if the original nay-sayer DID recant, you would have a legal argument…

That having been said, if you really want to fight a marriage fraud, you really need to attack the original marriage and show that the spouse currently being charged with marriage fraud was NOT committing fraud. That is a state action against the other spouse to show intent during (or at the time of) the original marriage. If you can get a judgment showing that the court found the marriage to be just and true, and that the other party is intentionally misrepresenting the situation, you can make a viable argument that marriage fraud was not operative in the instant case. This is a fun argument to make, and is based, again, on a state level trial against the spouse alleging the fraud.

You won’t be able to toss the marriage fraud via a 212 waiver (asking for discretionary grant of "leniency" based on fraud) as it was not incident to arrival:
While § 237(a)(1)(H) is a deportation waiver that requires a prior admission, it also requires that, at the time of that admission, the applicant was inadmissible due to fraud or misrepresentation. The BIA has held that the waiver is not available if the fraud or misrepresentation occurred subsequent to the admission. See, e.g., Salas-Velasquez v. INS, 34 F.3d 705, 708 (8th Cir. 1994) (former §241(f) waiver unavailable where applicant entered U.S. on a valid visitor visa and subsequently entered into a fraudulent marriage with a U.S. citizen); Matter ofConnelly, 19 I&N Dec. 156 (BIA 1984) (addressing the former § 241(f) waiver).(see http://www.ailf.org/lac/pa/lac_pa_fraudwaiver.pdf)


However, if you re-apply for admission and are denied, it is possible that a 212 might be available…but that is the instance where admittance is denied based on the fraud, you and re-open the marriage fraud allegation with the intent to retry the underlying issue (in this case, the BIA has held that when reviewing a subsequent request regarding the marriage fraud, the review must be taken anew and must be a substantial consideration, not relying solely on the determination alone of the prior finding). Generally, marriage fraud is not eligible for a 212 waiver because it was not fraud at the time of entry.

An interesting aside from this (same article):
Similarly, in certain marriage fraud cases, the retroactive validation of the applicant’s LPR status is critical. Specifically, where a non-citizen has been found to have committed prior marriage fraud, but now is in a valid marriage to a U.S. citizen or LPR, INA § 204(c) would bar approval of a visa petition filed by the second spouse. Thus the non-citizen would be barred from ever immigrating through this second, valid marriage. However, in Virk v. INS, 295 F.3d 1055, 1059 (9th Cir. 2002), the Ninth Circuit held that, where the non-citizen was admitted as an LPR based upon the fraudulent marriage, the grant of a § 237(a)(1)((H) waiver would waive the underlying fraud and the non-citizen would retain LPR status. As such, the court found that there was no need for a new visa petition by the second spouse and INA § 204(c) was inapplicable


Note, however, that the in the excerpt above, it would appear the applicant was admitted as an LPR (presumably through consular processing, for example), and as such the fraud was relied upon for entry.

Marriage fraud is generally terminal -- unless the client desires to fight the underlying cause of the fraud. The time required for this is extensive, and the expenses are not trivial. Waivers are rare, and generally, like asylum fraud, the bar is permanent. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed. This freuqently involves state court.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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