Immigration Nitpicking Puts FilAm in Deportation Court
by Atty. Emmanuel S. Tipon
The good looking 25-year-old young man from Cordilleras, Ilocos Norte married a 50-year-old woman from Hawaii after a whirlwind courtship through Skype and Facebook. The woman went to Manila to meet the young man, telling him to bring his family so that she could also meet them.
Following intimate relations, the woman told the young man that she would come back to marry him. She returned to Manila, and they got married at a city hall in the presence of her friends and the young man’s parents. They had a reception and a brief honeymoon at a hotel after the wedding.
The woman returned to Hawaii and filed a visa petition for the young man as the spouse of a U.S. citizen. The USCIS approved the petition and notified the young man to bring his wife at the visa interview which was a very unusual request.
The wife went to Manila for the third time, appeared at the interview, was questioned and convinced the consul that the marriage was bona fide. He was issued an immigrant visa.The young man arrived in Hawaii in mid-2016. He was granted conditional residence status for 2 years and given a green card. His wife had rented a place where they would stay together. During the time that they lived together as husband and wife, they had sexual relations and performed the duties of a true married couple.
About six months following the young man’s arrival, his wife did not return home from work. He called her and texted her. Finally, she told him she’s not coming home anymore as she fell out of love.
The young man’s conditional residence status was expiring. He was required to file a joint petition on Form I-751 with his wife to remove the condition. But because the wife wouldn’t sign the joint petition, he divorced her so he could ask for a waiver of the joint filing requirement on the ground that he had entered into a bona fide marriage but the marriage was terminated through divorce and that the alien was not at fault in failing to meet the requirements for filing a joint petition.
The young man submitted documents to establish that the marriage was bona fide including a joint federal income tax return, rent receipts, receipts for remittances from the wife while he was in the Philippines, receipts from the hotels in Manila where they stayed, photographs of the couple taken before their wedding, during their wedding, after their wedding, and during the time they lived together in Hawaii. Affidavits of the young man, his relatives, and friends of the couple attesting to the fact that the couple’s marriage was bona fide were also submitted.
Did the Wife Leave her Husband In 2018 Or 2016?
During a USCIS interview, the immigration officer asked the young man when his wife left him. He said 2018. USCIS denied the petition to remove the conditions of his residency.
The Director said that “after about six months” from the young man’s arrival in the US in 2016, his wife didn’t come home. The Director also added that the divorce petition stated they were separated in January 2017. USCIS further explained the young man didn’t meet his burden to establish the bona fides of his marriage and likely provided false testimony for the sole purpose of obtaining an immigration benefit.
Request to Reopen and Reconsider DecisionThe young man filed Form I-290B requesting that USCIS reopen and reconsider the decision denying the petition to remove the conditions on residence. He argued that:
(1) he had established by a preponderance of evidence that his marriage was bona fide and that there was no factual and legal basis for the Director in concluding that he provided false testimony, and therefore he was deprived of due process of law,
(2) his statement at the interview that his wife left in December 2018 was a slip of the tongue and that he had intended to say December 2016,
(3) he was deprived of due process of law because his counsel was not allowed to ask the clarificatory question whether he meant 2016 rather than 2018 as the date his wife left him,
(4) the Director erred in capitalizing on an immaterial and minor inconsistency as to the date when his wife left him, since that does not go to the heart of the issue whether the marriage is bona fide or not, and that minor inconsistencies do not provide an adequate basis for an adverse credibility finding.
The Director denied the request to reopen and reconsider, holding that the motion did not support the argument that USCIS misapplied the law.
Immigration Court Ruled That Marriage Was Bona Fide
USCIS filed with the Immigration Court a Notice to Appear against the young man alleging that his petition to remove conditions on residence was denied because he did not enter into the marriage with his spouse in good faith, and therefore he was removable.
At the Immigration Court, the young man testified that his marriage was bona fide. He and his wife married because they love each other with the intention to fulfill the responsibilities of a husband and wife. They had sexual relations many times. They planned to work hard in the United States and save as much money as they could so they could retire in the Philippines where life would be less stressful.
He explained that his declaration that his wife left in 2018 was a slip of the tongue and that he meant 2016. His testimony was corroborated by a relative in whose house the young man and his wife had rented a room and who observed that they conducted themselves as husband and wife, they cooked together, ate together, and hugged each other when the wife arrived at night.
We argued on behalf of the young man that the test of the bona fides of a marriage is whether the couple intended to establish a life together as husband and wife at the time of their marriage. The test was met by the young man and his wife.
We pointed to the plethora of evidence in the record to establish the bona fides of the marriage. We emphasized that the young man was not at fault when his wife left and when their marriage ended in divorce.
We told the court that the inconsistencies in the young man’s statements as to when his wife left him – whether 2018 or 2016 – were explained by the young man as a mistake and that he did not provide false testimony for the sole purpose of obtaining an immigration benefit. The date that a spouse leaves the conjugal dwelling is not the key issue in determining whether the marriage is bona fide.
The key issue is whether the couple intended to establish a life together as husband and wife – which they did in this case. We charged USCIS with focusing on the wrong issue: when did the couple separate?
“Let me be the first to congratulate you,” said the Immigration Judge, “I will remove the conditional basis of your permanent resident status. You may remain in the United States.”COMMENT: This is not the first time – nor will it be the last – that USCIS engages in nitpicking to put down aliens. It is strongly recommended that you get competent legal counsel to protect yourself and your loved ones when dealing with USCIS.
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.
ATTY. EMMANUEL SAMONTE TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.
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