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Citations for ILW.COM's Seminar
"Family Immigration: The Long Route From Love To Citizenship "
Session 3 held on August 12, 2004

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From Stuart Folinsky

Section 237(a)(1)(G) -- alien is deportable" fraud " if immigration based upon a marriage less than two years old at time of obtaining permanent residence based upon a marriage less than two years old at time of admission and the marriage is "judicially annulled or terminated" within two years subsequent to admission unless the alien proves that such marriage was not entered into for the purpose of evading the immigration laws.

It should be noted that this simply effects the burden of production.

Healy & Goodchild, 17 I&N Dec. 22 (BIA 1979) -- former 212(a)(19) -- which is now 212(a)(6)(C) -- determination in exclusion proceedings. In making "fraud" determinations, the BIA noted that although Section 291 of the Act places the burden on the alien -- "We believe however, that given the harsh consequences of a finding [for fraud], the factual basis of such finding should be subject to close scrutiny."

Patel, 19 I&N Dec. 774, 484-785 (BIA 1988) -- "In order to have any possibility of rebutting the presumption by that high standard, a petitioner in a case under section 204(a)(2)(A) of the Act must be accorded the same fair and reasonable evaluation of his evidence and factual situation as that given to any petitioner in visa petition proceedings. Simply because there is a statutory presumption that a petitioner's prior marriage was fraudulent, it should not be presumed that the petitioner's evidence is false or contrived or than any possible adverse inference which may be drawn applies to the sequence of events surrounding the prior marriage."

Treatment of I-751 Waiver as Abandonment of LPR

8 CFR 216.1 provides in relevant part:

"A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act, except that a conditional permanent resident is also subject to the conditions and responsibilities set forth in section 216 or 216A of the Act, whichever is applicable, and 216 of this chapter. Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed; the duty to register with the Selective Service System, when required; and the responsibility for complying with all laws and regulations of the United States. All references within this chapter to lawful permanent residents apply equally to conditional permanent residents, unless otherwise specified."

Damon v. Ashcroft, 360 F.3d 1084 (9th Cir. 2004) -- Court applied "substantial evidence" standard of review of denial of I-751 waiver. However, the court held that speculation as to what a marriage ought to be was not proper evidence to be used in denial. The court cited --

Khodagholian v Ashcroft, 333 F.3d 1003 (9th Cir. 2003) -- A straightforward abandonment case. The court applied the substantial evidence standard of review, but noted that the burden of proof "cut very much the other way" to establish abandonment.

From Douglas Stump

Form I-751 must be filed with the Director of the Service Center having jurisdiction over the alien's place of residence, 8 CFR 216.4(a)(3).

If the conditional resident and/or petitioning spouse failed to appear for their joint petition I-751 interview, the alien's permanent resident status "will be" automatically terminated, 8 CFR 216.4(b)(3).

The alien may seek review in removal proceedings of the decision to terminate based on failure to appear for interview, but the burden shall be on the alien to establish compliance with the interview requirements, 8 CFR 216.4(b)(3).

Unless otherwise specified, the rights and privileges which apply to all other lawful permanent residents apply to conditional residents, including accrual of residency for naturalization purposes, 8 CFR 216.1.

Atleast one service center (Vermont) will adjudicate both the I-751 and N-400 concurrently if the I-751 has not been approved prior to the N-400 interview. Others D.O.'s may require that the I-751 adjudication be completed prior to the N-400 interview. This decision is generally based on lo9cal staffing, scheduling, and training issues. See AILA Vermont Service Center Liaison Agenda Items and Response reviewed with VSC on February 5, 2004.

An alien whose conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the "good faith" exception. If an alien's conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for finalization of the divorce or annulment proceedings. See April 10, 2003 Memorandum from William R. Yates, Acting Associate Director Operations, BCIS, "Filing a waiver of the joint filing requirement prior to final termination of the marriage".