CIS recently released a memo confirming a nationwide policy to allow battered spouses who have received an approved Violence Against Women Act (VAWA) petition to apply for a green card while in the U.S., despite an illegal entry. Prior to this memo's release, there was no nationwide interpretation of the statute on this issue and various CIS district offices were granting VAWA green cards for those who entered illegally and many other CIS offices were not.
This is a huge victory for battered spouses who entered illegally, many of which could face unlawful presence bars, the permanent bar, or be at risk if had to leave the U.S. to process their green card petitions abroad at a consulate.
This memo was very narrowly tailored, however, to apply to those who entered without inspection, not necessarily pertaining to those who entered by other means, i.e., with a fiance visa and did not marry the USC sponsor but married someone else who turned abusive, or those who entered with J-1s who are having adjustment problems (or other such situations).
Monday, May 05, 2008
9th Circuit Finds Adjustment (Green Card) Unavailable to Persons Who Enter the U.S. by Using False Documents or by Fraud; Must Consular Process!
summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)
Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)
On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.
The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.
summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)
Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)
On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.
The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.
Saturday, September 15, 2007
Must the marriage be consummated?
Whether a marriage is considered a sham("fake", i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.
In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).
Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);
Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.
In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).
Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);
Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.
Conditional LPR marriage breaking up
Yes, the shorter the marriage is, the worse it looks on paper for a conditional green card holder. The whole point of having a conditional green card was congress was worried about sham marriages so there will be skepticism as to whether a short marriage was real to begin with if it breaks up especially in the first 6 months following the initial green card issuance. There's no safe time or date to break up the marriage to protect the immigrant's green card. Documentation and supportable facts can explain a short marriage and an immigrant may be eligible for a "good faith" marriage waiver (which requires a final divorce decree TO FILE the waiver in the first place). This requires that the marriage ws entered into in good faith by both parties, but due to reasons not due to the fault of the immigrant, the marriage split. It requires a lot of joint documentation of commingled assets and proof that the couple lived together for a significant amount of time. The problem arises due to the divorce decree which in some states can take 6 months to get at minimum! (CA, for instance).
If the divorce is not final or even filed at the time of 2 year green card's impending expiration, the immigrant may be eligible for an extreme hardship waiver as well, where the amount of documentation proving a bona fide or good faith marriage is not crucial but can be much more difficult case to prove depending on numerous factors including the (1) the age of the immigrant, (2) length of stay in the US, (3) their home country, and other factors. Again, an immigrant in such a situation should always consult at least one competnent immigration attorney with experience in multiple kinds of waivers to see what option(s) are best.
If the divorce is not final or even filed at the time of 2 year green card's impending expiration, the immigrant may be eligible for an extreme hardship waiver as well, where the amount of documentation proving a bona fide or good faith marriage is not crucial but can be much more difficult case to prove depending on numerous factors including the (1) the age of the immigrant, (2) length of stay in the US, (3) their home country, and other factors. Again, an immigrant in such a situation should always consult at least one competnent immigration attorney with experience in multiple kinds of waivers to see what option(s) are best.
Re: Conditional green card holder married to someone else
This is a tricky situation. A conditional green card holder cannot change or adjust her status to another conditional green card while she's still in conditional status. Plus, if her last entry was as a conditional green card holder (i.e., got her green card then went on vacation in Mexico and re-entered), there is some debate as to whether she can actually adjust her status even once her conditional green card expires and she's divorced and free to re-marry someone else. In Los Angeles, for instance, CIS takes the position that even if her last entry was as a CLPR, if her CLPR has been terminated for failure to file by (or even late file) the 2 year expiration of her card, and she re-marries, it is technically ok to adjust status.
Regardless, what happens if a expired CLPR remarries (and whether or not she is eligible to adjust status in the US or has to consular process) is that CIS will be concerned that the original marriage was not real but only a means to get a green card, especially since it was short. They will look specifically about why the marriage fell apart, how long the couple was together after the green card was issued, who's fault it was that they separated, and what kind of joint documentation the couple had together (i.e., long term existence of bank accounts, mortgages, health insurance, etc.) .
The facts differ in every case as does the level of documentation so it is always advisable to speak to a competent immigration attorney to determine the best route for the immigrant to take, whether it is trying to save the conditional green card in thefirst place through a waiver that doesn't involve the original spouse or starting over from scratch with a new spouse.
Regardless, what happens if a expired CLPR remarries (and whether or not she is eligible to adjust status in the US or has to consular process) is that CIS will be concerned that the original marriage was not real but only a means to get a green card, especially since it was short. They will look specifically about why the marriage fell apart, how long the couple was together after the green card was issued, who's fault it was that they separated, and what kind of joint documentation the couple had together (i.e., long term existence of bank accounts, mortgages, health insurance, etc.) .
The facts differ in every case as does the level of documentation so it is always advisable to speak to a competent immigration attorney to determine the best route for the immigrant to take, whether it is trying to save the conditional green card in thefirst place through a waiver that doesn't involve the original spouse or starting over from scratch with a new spouse.
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