Tag: removal proceedings

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Facing Deportation: What Happens When a U.S. Citizen Spouse Denies Your Marriage?

Facing Deportation - When a U.S. Citizen Spouse Denies Your Marriage
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For marriages of less than 2 years involving a U.S. citizen and a non-citizen, the initial green card is issued with a two-year conditional period. Before these two years expire, the non-citizen spouse must file to remove these conditions to obtain a green card with a ten-year validity period. But what happens if the U.S. citizen spouse becomes uncooperative, despite the couple still living together? Worse, what if the USCIS denies the joint petition for removal of conditions, putting the non-citizen spouse at risk of deportation? Let’s delve into the case of Maria and John

Maria and John’s Story

Maria, a young college graduate, met John, a U.S. citizen, while working as a guest relations officer at a popular beach resort in the Philippines. Their relationship blossomed, leading John to file a fiancé visa for Maria upon his return to the United States. The visa petition was approved, and Maria traveled to the U.S. to be with John.

During her initial stay, Maria noticed alarming changes in John, who was 20 years her senior. He became increasingly forgetful, his behavior erratic, and his mood swings frequent. Despite these challenges, Maria remained a patient and loving wife. However, they lacked sufficient proof of marriage—no photos together, no joint documents, as they lived with John’s family and didn’t pay rent.

When USCIS called them for an interview to remove the conditions on Maria’s residency, they were interviewed separately. The immigration officer concluded that Maria had entered into a fraudulent marriage, denying the petition. Maria was shocked. Upon reviewing the USCIS decision mailed to her, she realized John had made inconsistent statements during the interview, including an admission that the marriage was solely for Maria to obtain a green card. Maria suspected John’s worsening memory lapses had caused him to forget critical details of their relationship.

Now facing deportation for alleged marriage fraud, what legal steps can Maria take?

Maria’s Deportation Proceedings

When a non-U.S. citizen faces removal due to a denied petition for removal of conditions, the burden of proof lies with USCIS to establish grounds for terminating the conditional resident status. For her defense, the applicant can present new, material, and relevant evidence that was not previously submitted during USCIS proceedings.

Given the lack of joint documents and photographs, Maria must provide testimonial evidence from individuals who can attest to the authenticity of their marriage. Financial and property arrangements vary among couples, and some may have better documentation than others. In Maria’s case, her joint tax returns were her only significant documents. She was advised to gather witnesses who could detail their marital relationship.

Importantly, Maria did not have the opportunity to present this evidence during the USCIS interview. Immigration court provides the ideal forum to present additional evidence to prove her marriage was entered into in good faith.

Besides testimonial evidence, Maria can demonstrate that John has been clinically diagnosed with dementia, explaining his inconsistent answers during the USCIS interview. This crucial evidence could have significantly impacted her case.

With the submission of testimonial evidence and John’s medical records, Maria successfully proved her case in court and retained her green card.

Options for Others in Similar Situations

For those not as fortunate as Maria, an immigration judge, with the assistance of legal counsel, may accept an INA Section 237(a)(1)(H) waiver if the charge for terminating conditional residency relates to marriage fraud.

This case highlights the importance of gathering substantial evidence and leveraging all available legal avenues to demonstrate the legitimacy of a marital relationship, even under challenging circumstances.

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Unauthorized Use of Social Security May Result in Removal

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Fernando entered the United States in 2010 without a valid visa. To be able to work in the United States, he used a social security number of another individual illegally. In 2015, he was convicted of the “use of an unauthorized social security number” in violation of federal law (42 USC 408(a)(7)(B). Later the Department of Homeland Security charged Fernando as being removable because his criminal conviction was considered as conviction of a crime against moral turpitude (CIMT). He was ordered removed by the Immigration Court as his cancellation of removal was denied. Fernando’s appeal to BIA was denied and on petition for review the 5th Circuit Court of Appeals affirmed the BIA decision.

In a similar case pending with the Supreme Court, the Pereida, a long time resident of the United States with U.S. citizen children was put in removal proceedings. He has an underlying case of unauthorized use of social security number but his criminal conviction was a misdemeanor state offense of criminal impersonation under the Nebraska criminal statute. The immigration court ordered him removed considering the conviction as a crime against moral turpitude. BIA affirmed the immigration judge’s decision.  The case is still pending with the Supreme Court. Oral arguments were heard in October 2020 and no decision has yet been rendered.

Case to Case basis

While the two cases are similar in facts, the second case of Pereida was a state conviction while that of Fernando was clearly a federal crime. Legal arguments will be centered on whether the elements of the state crime corresponds to the federal offense listed on the Immigration and Nationality Act. 

Conviction for unauthorized use of social security number is a crime against moral turpitude and is a deportable offense. But each case is different. The underlying offenses must be analyzed on whether they clearly fall under the federal offense grounds for removal. Also, legal counsels should be able to look into any post-convictions relief if they are available to lessen or erase the immigration consequences of the crime.

On President Biden’s first day of office, he issued an Executive Order revoking Trump’s 2017 Executive Order on Enhancing Public Safety in the Interior. Thus, ICE, USCIS and CBP released a Memorandum focusing only on removing individuals who are threats to national security, border security and public safety. Conviction of a crime against moral turpitude for unauthorized use of social security is a fraud offense and does not fall under these priorities. However, without clear directives from ICE, favorable discretion may or may not be exercised to not enforce removal of those with misdemeanor offenses and with strong family ties.

Pathway to Citizenship 

In the meantime, it would be best for those still waiting to avail of the “pathway to citizenship” to be good citizens and to stay away from engaging in unlawful activities to avoid complicating future immigration applications. Or better yet, to have your case assessed if you have criminal case history to determine possible legal options of obtaining permanent resident status or availing of future options to “pathway to citizenship.”

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Provisional Waiver New Rules to Benefit More Unauthorized Immigrants

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A significant number of unauthorized immigrants who have been petitioned by U.S. citizen or residents’ relatives or employers still find themselves, after many years, still without legal status. Those who are not eligible, among others, include those who entered without inspection, fiancé visa holders with new partners, as well as those who entered with crewman visas. Generally, for those petitioned in family and employment-based preference categories they may adjust status only if they are in lawful status.

In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of U.S. citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the U.S. and get their immigrant visa at a U.S. Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.

On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.

First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. The Second change in the rule is consideration of additional relatives who may be qualifying relatives. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.

Thirdly, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver.

Fourth, the new rules now clearly states that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe”. This is now eliminated in the 2016 rules.

Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.

Those who may eligible may now prepare to file their applications for provisional waivers in time for the effectivity date of the new rule which is August 29, 2016.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

Nonimmigrants with immigration violations and the waiver application

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Most of the time, complications in obtaining visas are the result of past errors committed by an applicant, which could have been avoided. These past wrongful acts may come to haunt the future applicant for visa.

Elna and her husband Paul were green card holders and they have a US citizen-born daughter. Paul later moved back to the Philippines for work and Elna would travel often to be with him.

To keep her green card status, she would regularly return to the US and obtain reentry permits for her long trips.

Five years ago, Elna went to the Philippines for 11 months. She was erroneously told by a friend that she will have problems when she returns to the US because she has spent too much time in the Philippines and does not have a reentry permit.

Fake arrival stamp

Elna was worried and sought assistance from this friend. She was referred to a former airport employee who gave her a fake arrival stamp on her passport to show that she was in the Philippines for only one month.

When Elna returned to the US, the immigration officer discovered the fake arrival stamp. To avoid removal proceedings, Elna admitted to the fake stamp, and abandoned her resident status and voluntarily returned to the Philippines.

Elna has been living in the Philippines since she abandoned her status. Elna’s daughter Julia, who lives in the US, is pregnant. She wants to go back for her first grandchild’s birth.

She applies for a tourist visa at the US Embassy but her application is denied because she is inadmissible for fraud based on the fake arrival stamp she previously used. Will Elna be able to obtain a tourist visa to visit Julia and her family?

All grounds of inadmissibility

Elna is eligible to apply for a 212(d)(3) waiver for her fraud. Except for security-related grounds, this waiver applies to virtually all grounds of inadmissibility including visa overstay, criminal records, unauthorized employment, fraud/misrepresentation and removal orders.

The waiver is only available to nonimmigrant visa applicants such as tourists, H-1Bs, students, etc. Eligibility does not depend on having a qualifying family member or the passage of a specified time since the immigration violation.

As there is no specific form for the waiver, the applicant will need to explain the circumstances that led to the immigration violation and provide evidence that he or she is not a threat to the US.

Evidence of life changes such as rehabilitation or good character, established career, good family and community ties in order to persuade the consular officer that the immigration violation will not occur again. The decision to grant this waiver is discretionary.

The waiver can take approximately four to six months to be processed. While the waiver is available to a broad range of applicants, it is only a temporary solution.

The waiver is valid for one year and will need to be renewed each time the applicant applies for a visa.

Considering the harsh consequences involved in fraud and misrepresentation, it is best to avoid committing any immigration violation as it will always affect your chances of coming to the US and will only result in difficult and lengthy separations from your family, friends and business matters.