Fake First Marriage Not Cured by Second Bona Fide Marriage

by Emmanuel S. Tipon, Esq

A growing number of aliens enter into fake marriages with U.S. citizens (USC) or lawful permanent residents (green card holders) to enable them to become green card holders. When USCIS determines that marriage is fake and denies a petition for alien relative or an application for adjustment of status, the alien divorces the petitioner and enters into a genuine marriage with a USC or LPR.

The alien thinks that the filing of a new petition by the second USC or LPR spouse on his behalf will enable such alien to achieve the “American Dream” not of owning a home but becoming a USC or LPR.

Section 204(c)

Such dream could turn into a nightmare because of Section 204(c) of the Immigration and Nationality Act which provides:

“(c) Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud.

“Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”

What Section 204(c) means is that a petition for an alien will be denied if the Attorney General (USCIS) has previously denied a prior petition on behalf of the alien on the ground that the alien entered into a marriage to evade the immigration laws, meaning a fraudulent marriage.

How To Overcome Section 204(c)
The alien and the alien’s new petitioner must allege and prove when filing the new petition that their marriage is bona fide.

In addition, they must allege and prove that the alien’s first marriage was bona fide – that it was not entered into for the purpose of evading the immigration laws.

In Bark v. INS, 511 F.2d 1200 (9th Cir. 1975) the Court of Appeals held that the focus of the inquiry in an application for adjustment of status from a nonimmigrant to a permanent resident is the bona fides of the marriage – that is, whether the couple intended to establish a life together at the time of their marriage.

The bona fides of the prior marriage must supported by evidence consisting of documents in their joint names, including bank accounts, insurance policies, bills, pictures, and affidavits of the couple and third persons.

What If First Spouse Complains To USCIS?
In one case, the ex-spouse of an alien complained to USCIS that their marriage was fraudulent and that they did not have sexual relations. USCIS refused to allow the alien to question or cross-examine the ex-wife.

In  Ching v. Mayorkas,  725 F.3d 1149 (9th Cir. 2013), involving a Philippine citizen, the court held that a U.S. citizen I-130 petitioner has a protected property interest in the adjudication of the petition for a spouse and that their Fifth Amendment procedural due process rights were violated because they were not given the opportunity to cross-examine the beneficiary’s prior spouse regarding the prior spouse’s statement that their marriage with the beneficiary was fraudulent.

The Court said: “Plaintiffs also argue that the denial of Joseph’s I-130 visa petition violated their Fifth Amendment Due Process rights because they were not afforded the opportunity to cross-examine Ching’s first husband, Elden Fong, or the USCIS officer who took Fong’s statement. We agree.” Ching v. Mayorkas,  725 F.3d 1149 (9th Cir. 2013).

USCIS obtained a statement from Fong, Ching’s first husband, stating that Fong and Ching “never had sex” and “never lived together” and “did not marry for love.”

What If USCIS Denies Petition?
If USCIS denies the Form I-130 petition, the petitioner can file a motion to reopen and/or reconsideration. If it is denied, the petitioner can appeal to the Board of Immigration Appeals. The petitioner can also file a new Form I-130 petition.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.

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