Challenging a Finding of Marriage Fraud

By: Reuben Seguritan

Fraudulent or sham marriages are marriages between a US citizen or lawful permanent resident (LPR) and a foreign national for the purpose of evading the immigration laws and gaining an immigration benefit such as getting a green card. The marriage is a sham from its inception if the parties do not have the shared intention of establishing a life together for the rest of their lives.

The United States Citizenship and Immigration Services (USCIS) will not approve any I-130, Petition for Alien Relative, for a person who previously obtained, or attempted or conspired to obtain, immigration benefits by reason of a fraudulent or sham marriage. Hence, a prior sham marriage will always prevent the approval of any subsequent I-130 petition.

In a recent case, the court clarified that the government must show by substantial evidence that there is a sham marriage in order to deny an I-130. In a recent case, the US citizen filed the I-130 for his husband who was a citizen of Romania. They were married in May 2015. They were interviewed by the USCIS on January 12, 2017. They were given a Notice of Intent to Deny (NIOD) because of the Romanian’s former marriage. In response, he submitted an affidavit discussing his current and former marriages. He stated that both he and his first US citizen spouse were young and immature and didn’t think about the future. They had no savings and did not plan ahead. Hence, they eventually divorced.

However, on March 29, 2017, the USCIS denied the I-130 on the ground that the Romanian previously entered into a fraudulent marriage with his former US citizen wife. The USCIS stated that the Romanian and his former US citizen wife met on December 31, 2005 at a New Year’s Eve party and married a month later. On August 24, 2006, the US citizen filed a I-130 petition with USCIS for the Romanian. In September 2009, the USCIS denied the petition and the appeal was dismissed by the Board of Immigration Appeals (BIA) in February 2011. In September 12, 2011, the Romanian and his former US citizen wife were divorced. The USCIS concluded that the Romanian and the US citizen wife’s marriage was a sham marriage because they did not demonstrate by preponderance of evidence that their marriage was entered into in good faith. Their Judgment for Dissolution of Marriage stated that they lived separate and apart since March 15, 2007.

The USCIS concluded that since the former marriage of the Romanian was not bona fide and only to gain an immigration benefit, the I-130 petition with the new US citizen spouse could not be approved and denied it.

When I-130 petitions are submitted for spouses of US citizens or LPRs, the initial burden is on the government to identify substantial and probative evidence of marriage fraud. Substantial evidence is evidence a reasonable mind would find adequate to support a conclusion. If the government is able to establish marriage fraud by substantial and probative evidence, then the burden shifts to the couple to rebut the finding of marriage fraud.

The BIA dismissed the US citizen’s appeal on December 14, 2017. The BIA stated that the denial of the I-130 was proper because the Romanian had previously entered into a prior marriage for immigration purposes and not to build a life together with the US citizen.

On appeal to the US District Court, the court concluded that the evidence was not substantial to support the decision of the BIA. The BIA did not explain how the US citizen’s failure to present evidence of a shared life together (including lack of commingled financial assets) showed that there was substantial and probative evidence of marriage fraud. The government had the burden to initially show that a marriage was fraudulent. Here, the Romanian explained that he and the US citizen were immature and did not have insurance or much other evidence of commingled life because they had very little money and any savings they had were just spent right away. The BIA did not show affirmative evidence that creates more than a reasonable inference of fraud. Furthermore, the US citizen stated in 2009 that she and Romanian were now good friends. A fraudulent or sham marriage is intrinsically different from a nonviable or nonsubsisting marriage. The fact that a marriage at some point becomes nonviable or nonsubsisting does not in itself indicate that the marriage was a sham at its inception. The BIA also failed to discuss or reference the affidavit the US citizen submitted in response to the 2017 NOID to show that their marriage was bona fide and not for immigration benefits only.

The court added that the government failed to show evidence that the Romanian and the US citizen married for immigration benefits only. There was no admission by the US citizen that she was paid to marry the Romanian; there were no statements by family or friends that the marriage was a scam or they were unaware of the marriage; nor were there admissions by the Romanian or the US citizen that the purpose of the marriage was for immigration benefits. The Director did not make an affirmative finding that their marriage was a sham. Hence, the case was remanded to the BIA.