This latest one involved two issues, standard of proof and marriage fraud. I recently wrote about section 204(g) of the Immigration and Nationality Act (INA), which provides the general rule where a spouse of a U.S. citizen who marries while in removal proceedings cannot adjust to become a permanent resident, but instead must return to his home country for two years before the I-130 petition can be approved. However, section 245(e) of the INA provides for an exception to this general rule where the couple can prove their marriage is bonafide by clear and convincing evidence.
In this latest reversal and remand, although my client was in removal proceedings, he and his wife were married for a few years prior to the start of removal proceedings; therefore, section 204(g) of the INA does not apply. USCIS wrongly required my clients to prove their marriage by clear and convincing evidence instead of preponderance of the evidence.
It's quite stunning that USCIS applied the incorrect standard of proof when they clearly knew my clients were married a few years prior to the instigation of removal proceedings. It's also shocking that USCIS will determine a marriage to be fraudulent without any evidence. For USCIS to get it so wrong, so many times, it naturally leads to questions not only about training but also questions about leadership from the first line supervisors to the section chief, branch chief, district director and to the USCIS attorneys who review the appeals prior to sending them to the BIA.
I hate to wonder how many decisions USCIS have gotten wrong where couples represented themselves pro se and instead of fighting decided to give up.