Serious Consequence of Failure to Terminate Prior Marriage 02 November 2011
Dear Atty. Lou,
My spouse and I together with our child came here in the United States as immigrants. We've been happily married for years now until a couple of days ago she confessed that long time ago she was previously married in the Philippines to a US immigrant who was in the process of applying for citizenship, the guy's citizenship and his petition for her was not approved during that time due to insufficiency of time spent living here in the states. Their marriage was entered a couple of years before we met; the arranged marriage was her family's idea of a quick fix so she can join a family member here in the States. My heart was crushed when I heard this from her; she hid it from me for years. Now this problem has surfaced because the guy is looking for ways to clear his records and to nullify that marriage, as he will be re-applying for citizenship.
My spouse and her family never thought about the consequence of her first marriage, they never fixed it before we got married and before she got her visa. She and her parents are naive about civil marriage laws. Now it appears our marriage (her second marriage with me) is not valid or legal at all, I am afraid that this will haunt us when the guy re-applies for citizenship and when its time for us to apply for citizenship. Attorney we still both love each other so much, and we do want to stay here in the States and apply for citizenship someday as this great country has given us hope and opportunities to live a life that we always dream of, please advise us on what options and actions to take.
The facts of your case are quite similar to a very recent decision published on October 26, 2011, Alhuay v. US Attorney General, No. 10-15334. In this case, the respondent did not reveal a prior marriage she had in her home country and without terminating this marriage, went ahead and married her second spouse, a lawful permanent resident. According to the U.S. Court of Appeals for the Eleventh Circuit, despite passage of more than five years from the time the green card is issued, the government is not barred from placing the non-citizen in removal proceedings when fraud or misrepresentation is involved. The misrepresentation here is the wife’s concealment of a prior marriage. The Department of Homeland Security discovered about the misrepresentation when she filed for naturalization. Instead of approving her naturalization application, a notice to appear for deportation was issued by the Department of Homeland Security. Hence, in your case, I suggest that you do not file for citizenship application until all the marriages have been declared null and void and that you have remarried.
A person may not contract marriage without dissolving any prior marriage. If the marriage was entered into without dissolving the first, the second marriage becomes bigamous and void from the beginning. Your marriage to your wife now is considered bigamous.
Your wife should take steps to determine the status of the first marriage. It appears that the first husband is diligently looking for ways to annul their marriage. If that is the case, then your wife should agree to that. You can also have your marriage annulled in the state family courts and when all these declaration of nullity are valid, you may re-marry your wife again.
It is always advisable to be truthful to lifetime partners especially when it comes to filing immigration petitions. No matter how long the prior marriage was entered into or the misrepresentation, it may always come up in any immigration application or petition. To those who are similarly situated, be reminded to avoid misrepresenting a material fact in immigration applications to prevent the trouble of a rescission of green card or being placed in removal proceedings.
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or at 1 888 930 0808, email at firstname.lastname@example.org. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to email@example.com).