by Emmanuel S. Tipon, Esq.
In at least three cases, immigration officers have asked for adjustment of status applicants: “When was the last time you had sex?”
How Many Times Can A Marriage Be Consummated
An Ilocano attorney was assisting an applicant for adjustment of status in California. During the interview the officer asked the male citizen petitioner if their marriage was consummated and if so when.
The man turned to the lawyer and asked in Ilocano: “Ania ti cayat na nga saoen ti “consummated”?” “Nagyala kayo, ken caano (Did you have sexual intercourse, and when?),” the lawyer whispered.
“Oh yes, we consummated last night, we consummate every night,” exclaimed the man, raising and shaking his two arms as if he was Manny Pacquiao who had just won the fight by a knockout.
“Sir, you consummate a marriage only once,” retorted the female immigration officer.
“I don’t know about you ma’am, but we consummate our marriage many times,” replied the man gleefully.
The lawyer kicked the man’s leg, turned to him, and told him to keep quiet. The lawyer apologized to the officer for the man’s exuberance.
Was the adjustment of status approved? Of course. The lawyer always wins adjustment of status applications.
A Widow And A Young Man
A widow, over 60, and a U.S. citizen knew a 20-something young man. He was virile and single and had done household chores for the woman in the Philippines whenever she went home.
She petitioned the young man as a fiancé. It was approved. He filed a petition for adjustment of status to convert his nonimmigrant fiance visa to that of an immigrant.
The woman interviewing officer immediately separated them, sending the woman back to the waiting room and proceeded to interview the man. That’s a bad sign when the interviewer separates a couple to be interviewed. That means that the officer is suspicious of the genuineness of their marriage.
The officer asked the man towards the end of the interview: “When was the last time you had sex?”
“I don’t remember,” the man replied.
The Officer sent the man back to the waiting room and called the wife. The officer asked right away: “When was the last time you had sex?”
The woman replied: “Yesterday.”
“How come your husband said he did not remember if it is true that you had sex only yesterday?” the officer said.“One of you must be lying. Or both of you are lying.”
After a few more questions, the officer terminated the interview. The result? Application denied.
We asked to reopen and reconsider the decision. We argued that to a man sex is not that important and many cannot recall when they had sex, but to a woman, it is her whole existence. We quoted Lord Byron: “Man’s love is of man’s life a part; it is a woman’s whole existence.”
We further argued that the issue, in this case, was whether or not the marriage was consummated. There was no dispute that it was. The only question was when? We pointed out that it was immaterial. The couple had answered every question correctly except the sex question.
We also argued that marriage is bona fide if at the time of their marriage the parties had intended and “undertaken to establish a life together and assume certain duties and obligations” as husband and wife. (Lutwak v. United States, 344 U.S. 604 (1953); Stokes v. United States, 393 F. Supp. 24 (1975))
We pointed out that in Bark vs. INS, 511 F.2d 1200 (9th Cir. 1975), the Court of Appeals for the Ninth Circuit held that: “Petitioner’s marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married. The concept of establishing a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead.”
In other words, it is the intent of the parties at the time of celebration of the marriage that is determinative of the bona fides of a marriage. There is no law or rule requiring consummation.
The Director reconsidered the denial and granted the adjustment of status.
A 50-something female U.S. citizen filed a fiancee visa petition for her 20-something cousin in the Philippines. It was approved. They married immediately in Hawaii.
They did not marry in the Philippines because first cousins are not legally allowed to get married under the Family Code which is heavily influenced by the Catholic Church and the Bible such as Leviticus 18:6-19. In Hawaii first cousins can marry. Do they live happily ever after? Hopefully.The husband filed an application for adjustment of status to convert the nonimmigrant fiancé visa status to lawful permanent resident status.
At the elevator, I told them that the officer will ask when was the last time they had sex, so they better agree on when was the last time.
“Si attorney naman,” commented the woman, “do they ask those things?”
“They asked the last time I went to an interview,” I recalled.
At the interview office, the female officer separated them. A very bad sign. I whispered to the woman “Don’t worry.”
She escorted the wife to the waiting room. She proceeded to question the husband. I suggested that we call an interpreter. The officer asked the man if he spoke and understood English. The man said he spoke a little. The man had difficulty understanding and answering the questions. But the interview was passable. Then came the bombshell: “When was the last time you had sex with your wife?” The man replied: “Last night.”The interviewer terminated the interview, escorted the man to the waiting room and called his wife. She asked many questions, including why she married her own first cousin and why she married a man half her age. She answered: “I love him,” with an air of sincerity. I have one last question, intoned the interviewer: “When was the last time you had sex with your husband?” She answered beaming with confidence: “This morning.”
“But your husband said you had sex last night,” said the officer. “There is a contradiction here.”
“Are you sure you had sex at all with your husband?” the officer persisted.
“Yes,” the woman insisted.
The officer said that they were not credible. She said she would make a recommendation and for them to just wait for the decision.The adjustment of status was denied. It capitalized on discrepancies in their declaration. I asked both of them if they really had sex. “Yes,” they both replied.
“What time did you have sex this morning?” I asked the wife. “About 2 or 3 o’clock,” she said.
“What time did you have sex?” I then asked the man. “The same, about 2 or 3 o’clock,” he said.
“Then why did you say that it was last night when it was already 2 or 3’clock in the morning?”
The man replied: “It was still dark, so I said last night.”I filed a motion to reopen and reconsider the decision. I asked that they be interviewed again so that they can explain the discrepancy and that there was a misunderstanding on whether 2 or 3 o’clock in the morning is still night. I argued that it was not a material issue because the fact of the matter was the marriage was consummated.
I also hurled a challenge to the USCIS to send an investigator to make a surprise visit to the couple’s home to check if they were really married. Sure enough, the USCIS sent two investigators to their address one morning just after the cock crowed.
They knocked on the door several times. The woman answered the door. They asked who she was. They asked where her husband was. She opened the door to their bedroom. The husband was curled up in bed with a blanket. They asked her to wake him, asked him who he was, and what was his relationship with the woman. The officers left.The couple was interviewed again. The Director reconsidered the denial of the adjustment of status and approved it.
The woman said that they went through a lot of difficulties, but it was their destiny to be together. To recall singer Billy Eckstine’s ballad: “My destiny is to be in love with you. Makes no difference what you say or do. I must stay in love with you. That’s my destiny. It’s the thing you can’t control.”
ATTY. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in 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 has written law books and legal articles for the world’s most prestigious legal publisher 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: firstname.lastname@example.org. Website: https://www.tiponlaw.com.
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.)
by Emmanuel S. Tipon, Esq.