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Monday, 07 May 2012 14:53

BIA Remands Another Marriage Based I-130

Written by  Troy Sim
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Last week we recieved another decision from the Board of Immigration Appeals (BIA) reversing and remanding a U.S. Citizenship and Immigration Services' (USCIS) denial of an I-130 petition based on marriage to a U.S. citizen. Thus far, we have batted 1,000 as the BIA has reversed and remanded every I-130 appeal we have made, approximately a dozen in all.

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.

The second issue was a claim by USCIS that my client committed marriage fraud with his prior spouse. USCIS based their finding of marriage fraud solely on the prior spouse's subsequent marriage to another man in which she pled guilty to marriage fraud in federal court. However, USCIS didn't have any evidence that my client committed marriage fraud. In fact, I'm certain the U.S. Attorney's Office and USCIS had previously investigated my client's marriage to his prior spouse during her prosecution. Moreover, we were able to submit testimonies from both my client's and his prior spouse's family members as to the bona fides of their marriage.

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.
Last modified on Tuesday, 04 September 2012 23:40

Troy Sim

Troy Sim attained his Bachelors of Arts (B.A.) in Government from The University of Texas at Austin in 1995 where he was inducted into the national political science honor society, Pi Sigma Alpha. He received his Doctor of Jurisprudence (J.D) from The University of Houston in 1999 and is licensed as an attorney and counselor at law by the Supreme Court of Texas. He is admitted and qualified as an attorney in the federal courts of the U.S. District Courts for the Southern District of Texas (Houston region), Northern District of Texas (Dallas-Fort Worth region), and the U.S. Court of Appeals for the Fifth Circuit.

Website: www.simlawoffice.com

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