basic track session 8: how to challenge a finding of ... - 01... · evidence of joint travel shared...

Marriage

fraud, evidence and

burdens of proof

Presented by

Rachel Game and Philip Hornik

The Newly Filed Game

2019 NW Regional Immigration Law ConferenceBasic Track Session 8: How to challenge a finding of marriage fraud

Rachel Game & Phil Hornik

February 14-15, 2019 of 18

Meeting Prospective clients-

Red Flags and due diligence

Red Flags: ○ Big age difference

○ No common language

○ From very different cultures

○ No common interests

○ Do not live together

○ Don’t know much about each other

○ No joint finances

You get to play the Newlywed Game during your meeting with

prospective clients. How well do they know each other? What do your

instincts say?



February 14-15, 2019 of 18

What Petitions can be filed by couples?

● I-130 Spousal Petition

● I-129 F- Fiance Petition

● I-730 Spouse of an asylee

● Any others?



February 14-15, 2019 of 18

Burdens of proof

● The burden is on the petitioner to establish that he or she is eligible for the

benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).

● The service has no burden until the petitioner or applicant establishes prima

facie eligibility.

● After prima facie is met the service may then determine there are adverse

facts or discretionary reasons that would make the applicant ineligible. The

burden then shifts back to the applicant to overcome these factors.



February 14-15, 2019 of 18

standard of proof -

Preponderance of the evidence

● Standard of proof in most administrative

immigration proceedings is the

“preponderance of the evidence”.

● Probably True or More Likely Than Not.

● U.S. v. Cardozo-Fonseca 480 U.S. 421

(1987) - more likely than not as greater than

50% probability of something occuring.



February 14-15, 2019 of 18

Establishing prima facie

● Proof of USC or LPR status of Petitioner

● Identity of beneficiary spouse; birth certificate with

English translation

● Marriage certificate

● All prior divorce certificates for both parties

● Evidence of bona fide marriage



February 14-15, 2019 of 18

What evidence to submit to show bona fides

● Birth certificates of children born to

the marriage

● Joint bank accounts

● Joint leases or proof of joint

ownership of residence

● Life insurance or retirement survivor

designations

● Evidence of joint travel

● Shared bills and tax returns

● Photos of couple. Include some

showing couple with extended family

and friends



February 14-15, 2019 of 18

Do tax returns show Filing as married?

● Look for tax returns that have not

been filed either as married filing

jointly or married filing separately

● Federal returns should show the

name and SS# or ITIN of spouse

even if they have no income

.

● Head of Household designation not

available to married couples living

together.



February 14-15, 2019 of 18

Higher standard of proof when beneficiary

is in removal proceedings

● Spousal I-130 visa petition may not be approved while the beneficiary is in

removal proceedings. INA § 204(g)

● Proceedings begin when the NTA is filed with EOIR 8 CFR 245.1(c)(8)(i)(D).

● Exceptions:

○ 2 year foreign residency requirement or

○ Written request for exception and couple establishes by clear and

convincing evidence marriage entered into in good faith



February 14-15, 2019 of 18

Clear and convincing evidence

● Evidence indicating that the thing to

be proved in highly probable or

reasonably certain.

● “More than a preponderance but

less then beyond a reasonable

doubt.” Matter of Carrubba 11 I & N

Dec. 914, 917 (BIA 1996)



February 14-15, 2019 of 18

Conditional residency- The answer to fraud

● Residency via a marriage that is less than 2 years old results in conditional

residency. INA § 216 Immigration Marriage Fraud Amendments Act of 1986

● Length of marriage calculated on date of entry into the United States (not the

date the immigration visa issued) or calculated as of date an AOS is approved

● Conditional residency is valid for a 2 year period

● Residency automatically terminated if I-751 not timely filed

● I-751 can only be filed late if the petitioner establishes there was good cause

for failure to file within 90 day window.



February 14-15, 2019 of 18

5 year prohibition to F2A Petition

Another answer to fraud

Under, INA section 204(a)(2)(A) there is a

presumption of fraud when an LPR files an F2A

spousal petition within 5 years of getting LPR

based on a marriage.

The petitioner must present "clear and

convincing evidence" to overcome the

presumption that the 1st marriage was

fraudulent.

Matter of Patel, 19 I & N Dec. 774 (BIA 1988)

Second

WifeLPR

USC First

Wife



February 14-15, 2019 of 18

I-751 Petition filed jointly

● Must file a joint Petition to Remove Conditions on form I-751 within 90 day

window before the 2 year residency expires. 8 C.F.R 216.4(a)(1) and

1216.4(a)(1)

● Marriage must not be terminated

○ Couple may be separated or even have filed for divorce and still file

jointly

○ USCIS may not deny a petition solely because spouses are

separated.

○ USC spouse must sign the petition, even if separated.



February 14-15, 2019 of 18

Evidence to submit with joint I-751

● Submit documents as proof of valid marriage that cover the entire 2 year

period of conditional residency status. May also include evidence that

predates the grant of condition residency.

● What to type of evidence- 8 C.F.R § 216.5

○ Joint ownership of property

○ Leases

○ Commingling of financial resources

○ Birth certificates of children born to the marriage

○ Affidavits of third parties having knowledge of the marriage

○ Any other evidence showing the bona fides of the marriage



February 14-15, 2019 of 18

I-751 Waiver

● If the conditional resident cannot file jointly they can request a waiver. The

waiver fled on form I-751.

● A non joint I-751 need not be filed within the 90 day period. It can be filed at

anytime.

● The conditional resident must establish that;

○ The marriage was entered into in good faith; and

○ The marriage was terminated through divorce or annulment or

○ Extreme hardship will result if they are removed; or

○ They were battered or subjected to extreme cruelty during the

marriage.



February 14-15, 2019 of 18

So…. How did the two of you meet?

The Interview

You finally get an interview notice with

USCIS or the Consulate.

Prepare your clients.

● Updated proof of valid marriage

● Alien spouse might have gotten

EAD and SS# and they may have

more evidence of bona fides by the

time of the AOS interview

● Do a mock interview- have them

explain their love story



February 14-15, 2019 of 18

FDNS- Fraud Detection and National Security

● Before or after the interview if fraud is

suspected

● Come to do a “bed check” look at the

residence.

● May speak with neighbors or family members



February 14-15, 2019 of 18

Social Media and bona fides

Social Media Posts can help or hurt your

client’s marriage base case.

● DHS may look at social media

accounts when it suspects fraud

● Petitioner and Beneficiary can submit

social media posts to show they are

public about their relationship.

● Facebook posts with time date/stamp

and comments.



February 14-15, 2019 of 18

basic track session 8: how to challenge a finding of ... - 01... · evidence of joint travel shared...

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