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Friday, 13 April 2012 16:30

Can Marriage Fraud Be Presumed Without Any Evidence? USCIS Thinks So.

Written by  Troy Sim
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Previously I mentioned the Board of Immigration Appeals (BIA) reversed and remanded a finding of marriage fraud by U.S. Citizenship and Immigration Services (USCIS) based on a fictitious signed and sworn statement made by my client confessing fraud. The BIA wrote in its decision that they could not find this signed and sworn statement; in short USCIS made it up.

Now the BIA has remanded another finding of marriage fraud, but this time instead of making up evidence, USCIS made up the law.

My client was previously married to a U.S. citizen while he was in removal proceedings. Section 204(g) of the Immigration and Nationality Act (INA) provides a general prohibition against approving an immigrant visa petition based on marriage to a U.S. citizen that is entered into once removal proceedings have begun. But section 245(e) provides an exception to that general prohibition where it can be established by the high standard of "clear and convincing" evidence that the marriage was entered into in good faith. If the couple is unable to meet the standard of clear and convincing evidence, the law requires the alien spouse to be outside the U.S. for two years before the petition can be approved. 

Because my client and his U.S. citizen wife were unable to prove his marriage by clear and convincing evidence, USCIS simply denied their I-130 petition. It is important to note there was never any allegation or evidence of marriage fraud, INA section 204(c).

Now my client’s U.S. citizen daughter from a prior marriage petitioned an I-130 for my client. But USCIS denied her petition writing that since my client and his wife were previously unable to meet the high standard of clear and convincing evidence of a bona fide marriage, “in such cases, there is a presumption of fraud [p]ursuant to 204(g) of the Act.”

But the presumption of marriage fraud is non-existent in INA section 204(g). I couldn’t believe that USCIS took upon itself to rewrite the statute that Congress wrote by adding a presumption to the law. The federal courts and the BIA have consistently held for there to be a finding of marriage fraud, there must be a positive finding of “substantial and probative” evidence of fraud. Since there was not substantial and probative evidence of marriage fraud but only a fictitious presumption, the BIA remanded USCIS’s denial decision.

The lesson of this story is don't take anyone's word, not even the U.S. government, on what the law is; instead check it out for yourself.

The questions then are how did USCIS get this decision so wrong? How is it that USCIS can make up non-existent evidence and law? That’s a story for another day.

Last modified on Tuesday, 04 September 2012 23:40

Troy Sim

Troy Sim attained his Bachelors of Arts (B.A.) in Government from The University of Texas at Austin in 1995 where he was inducted into the national political science honor society, Pi Sigma Alpha. He received his Doctor of Jurisprudence (J.D) from The University of Houston in 1999 and is licensed as an attorney and counselor at law by the Supreme Court of Texas. He is admitted and qualified as an attorney in the federal courts of the U.S. District Courts for the Southern District of Texas (Houston region), Northern District of Texas (Dallas-Fort Worth region), and the U.S. Court of Appeals for the Fifth Circuit.

Website: www.simlawoffice.com

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