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Immigration Marriage Fraud and the Hurdles to Proving a Marriage is Genuine

One of the ways individuals can qualify for a green card is through a petition filed by a spouse who is a United States citizen or a lawful permanent resident.   However, the marriage must be valid, and not one of convenience entered solely for an immigration benefit.   The latter kind of marriage will be considered fraudulent by the immigration authorities.  Catastrophic consequences will result when the government discovers marriage fraud, as in the case of New York assemblywoman Gabriela Rosa.   She pled guilty last Friday, June 27, to having entered into a sham marriage to a United States citizen to obtain lawful permanent resident status, and later U.S. citizenship.  The federal criminal information alleges she paid her first spouse about $8,000 to marry her in 1996 and she ended the marriage in 1999.  The court document also states she made false and misleading statements under oath about the “bona fides” of her first marriage (1) on about August 25, 1999, when she sought to adjust her status to that of a lawful permanent resident and (2) on or about August 21, 2005, when she applied for U.S. citizenship.   Because of these and other offenses relating to a bankruptcy case, she has been forced to resign as the representative of Assembly District 72 of Manhattan.  Though she faces a maximum prison sentence of 10 years in prison, her plea agreement recommends a sentence of 12 to 18 months.  Estimates of possible fines range from $30,000 to $250,000.  Sentencing is set for October 3, 2014, in the United States District Court for the Southern District of New York.  

It was not reported specifically how the government uncovered her marriage fraud so many years after she became a lawful permanent resident, after she ended the marriage, after she remarried, and after she became a U.S. citizen in 2005.  It may be inferred that either the government discovered the marriage fraud in investigating her alleged bankruptcy fraud or her first spouse provided information to the government for whatever reason.   Nonetheless, her case should be taken as a warning not to (a) ask a “mere” friend or (b) pay a stranger to marry you in order to gain lawful permanent resident status.   It should be noted that the Department of Homeland Security will intensively and repeatedly review the “bona fides” of a marriage at various points: after the filing of the initial I-130 visa petition; before, during, and after the time of the adjustment of status interview; and even during the naturalization application process.  As noted above, Gabriela Rosa’s marriage fraud evidently came to light several years after she was approved for U.S. citizenship.  

Even where there is no fraud in an adjustment of status case based on marriage, the burden of proving that a marriage is real should be taken seriously by the I-130 petitioner and the immigrating spouse.   DHS examiners typically look for solid proof the marriage is real.  Besides checking public records such as credit reports and motor vehicle records, they will check social media, especially Facebook.  They expect to see evidence the couple has established and is maintaining a life together.  Documents such as the marriage certificate, residential lease, correspondence with the same address, joint bank accounts, and pictures are helpful, but do not absolutely prove  a ”bona fide” marriage exists.

The officers also talk to the couples during the adjustment of status interview.  If the I-130 petitioner and immigrating spouse don’t come across as an intimate couple, DHS officers may dig deeper into their marital relationship, possibly by visiting their home and asking questions of their neighbors and employers.  (A home visit happens much more often outside New York.)  But the more usual approach when marriage fraud is suspected is for the DHS examiner to schedule a marriage fraud interview.  In the New York District Office, this interview is conducted in a separate “Stokes” Unit named after a 1976 Federal District Court decision, Stokes v. INS , No. 74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976).  Prior to the Stokes decision, the record for adjudication purposes was the application, evidence submitted and the examiner’s notes and interpretation.  As such, an unfavorable decision was hard to appeal.  Among other extra protections afforded by the Stokes decision is that the couple has the right to bring a lawyer and the interview must be recorded.  In the other districts, there usually isn’t a recording to create a reliable record of the interview.  

When the marriage fraud (or “Stokes”) interview is conducted, the immigrating spouse and the petitioner are placed in separate rooms and are asked identical questions, some of which may be seem like an invasion of privacy.   Their answers to each question are compared for consistency.   The questions can focus on minor routines and circumstances of the couple’s home life.  They will be asked about the details of moments they shared together, such as their wedding; first encounters with in-laws; movies they have seen; and trips they have taken.  If there are numerous or major inconsistencies, the Stokes interview can result in the denial of adjustment of status application and a finding of marriage fraud.  The key to avoiding these potentially risky second interviews is to establish that marriage is “bona fide” at the first interview.  Often this is difficult, because of the short duration of many marriages.  For example, initial interviews in the New York District are sometimes scheduled less than 4 months after filing.  This is hardly enough time to gather tax returns, receipts, pictures,  bank accounts, insurance, etc.

Because many sham marriages successfully got past the initial adjustment interview in the past, Congress adopted the Immigration Marriage Fraud Amendments of 1986.    As a result of these amendments, those whose green cards or immigrant visas were approved based on marriages shorter than 2 years in length were limited to two-year conditional residence cards.   Within the 90 days of the expiration of these 2-year cards, the couple is expected to submit form I-751, Petition to Remove Conditions on Residence.  They are expected to also provide written evidence of their ongoing life together, which may include tax returns, birth certificates of children born to them, property records, leases, etc.   If the supporting documents are not sufficient, they may even have to come in for another interview, before a decision is made on whether to remove the conditions.   If approved, the conditional residence card is replaced with a “permanent” residence card, i.e., a renewable card that expires in 10 years.   If this petition is denied, or no petition is filed at all, the immigrating spouse and children may become deportable.   It does happen that some couples do not complete this phase of the immigration process because they have separated, divorced, or the petitioner refuses to sign Form I-751.  If so, the immigrating spouse may be eligible for a waiver if it can be shown that extreme hardship may result or if battery or abuse was a factor in the marriage.   Needless to say, in some cases, a fraud investigation may be conducted if the I-751 was not jointly filed,

Even though marriage fraud may go undetected during the adjustment of status phase, it is often uncovered later when the immigrant tries to naturalize.  What many immigrants do not realize is that applying for U.S. citizenship will trigger a careful review by USCIS of the naturalization applicant’s entire immigration file.  DHS will not just investigate the marriages of those seek to naturalize early after 3 years of personal residency status based on marriage to a U.S. citizen.  It will also look into the “bona fides” of the marriages of all naturalization applicants who qualified for lawful permanent residency status based on marriage.   

It is important to note there are serious penalties for marriage fraud, criminal as well as civil.  Section 275 (c) of the Immigration and Nationality Act says “Any person who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000 or both. “  Even if an immigrant is not prosecuted criminally, the civil penalty would be severe in that the person could lose his or her immigration status and placed in removal proceedings.  This fraud finding and resulting penalty will become permanent parts of their USCIS record.  Also, the immigrant can be barred for life under Section 204(c) of the Immigration and Nationality Act from obtaining any immigration benefits in the United States.

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Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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