USCIS scare, AOS approved and Divorce pending

[john_and_marlene 162]

Why is everybody so sensitive on this one? It is a pretty straight forward question that seems to have incited some kind of VJ riot.

I read the whole thread and I really can't find the " bad guy ". You all seem more or less intelligent and articulate. I really don't see why this has turned into a cat fight. The poor OP walked away long ago!

This sort of thing always happens when someone comes in, says they're a lawyer in an attempt to validate their supposed superior knowledge, despite the fact that they aren't an immigration lawyer, and starts telling everyone they're wrong. If you want to understand why there is so much "bad blood" look no further than that. Trust me I've seen this happen on a few other forums before!

Why do you continue to insult people and grossly mischaracterize their statements? In fact, I've now read a number of threads where you've done just that. Noone in this thread announced that others should just trust him because he is a lawyer. In fact, the opposite is true. He has been posting ample support for his views and explanations and telling people NOT to rely on the fact that he is a lawyer in forming their own conclusions.

At the very least have the guts to accept that you are one of the primary instigators of this debate and one of the reasons this thread is as long as it is and as off-topic as it is.

If you want this thread to stay on topic, stop taking it off topic. You are engaging in the very thing you are opposing.

[diadromous mermaid 36]

In all seriousness, I think everyone honestly wants to help the OP

I don't want to help this OP. His filing for divorce immediately after the AOS interview is suspect to me. I simply wanted to explain to him why I think the USCIS will reverse their approval and deny him the GC.

I don't see why this thread should be locked either. I think the debate here has provided some useful insight.

Right. I agree. Why lock the thread? This is an interesting dilemma, that we all agree can’t be determined here and should be posed before an immigration attorney, nonetheless, the discourse is helpful for all in learning that sometimes cases that may appear simple, might involve more complexities than we imagine.

The more reading I have done I stumbled upon a series of cases that had underpinnings related to the viability of marriage which had suprising results (at least they were to me), for example:

Matter of Lenning, Interim Decision #2817

Matter of Lew, 11 I & N. Dec. 148 (D.D.1965),

Matter of Sosa, 15 I & N. Dec. 572 (BIA 1976)

Dabaghian v. Civiletti, 607 F.2d 868 (9 Cir.1979)

Matter of Kondo, Interim Decision 2781 (BIA 1980)

Chan v. Bell, 464 F.Supp. 125 (D.D.C.1978)

Matter of McKee, Interim Decision 2782 (BIA 1980), and

Bark v. INS, 511 F.2d 1200 (9 Cir.1975).

[am1996 0]

I understand the angle that you are coming from, but I think when you immerse yourself in these matters, you will see why problems arise and why people are disagreeing so vehemently with you.

The matter of fact is that USCIS often acts outside the scope of law and often misapplies or quite simply IGNORES it --- this give rise to quite a volume of litigation which, usually is sorted out at the appellate level. I think what some members are expressing is that your ideas may work in front of the immigration judge/appellate court judge, but not in front of the USCIS officer.

It is not supposed to be this way --- but that is just the nature of the beast.

Of course USCIS often misapplies or ignores the law. All government agencies do. This does not mean, however, that people should stop following the law or the instructions because "anything can happen." The simple fact is that a petitioner stands the best chance of getting his/her application approved if the law and the rules are on his side. This is the case not because he's then likely to prevail on an appeal but because following the rules and the regulations makes it that much more likely that the application will be approved from the outset. Do we really need to argue about this point?

Right. I agree. Why lock the thread? This is an interesting dilemma, that we all agree can’t be determined here and should be posed before an immigration attorney, nonetheless, the discourse is helpful for all in learning that sometimes cases that may appear simple, might involve more complexities than we imagine.

The more reading I have done I stumbled upon a series of cases that had underpinnings related to the viability of marriage which had suprising results (at least they were to me), for example:

Matter of Lenning, Interim Decision #2817

Matter of Lew, 11 I & N. Dec. 148 (D.D.1965),

Matter of Sosa, 15 I & N. Dec. 572 (BIA 1976)

Dabaghian v. Civiletti, 607 F.2d 868 (9 Cir.1979)

Matter of Kondo, Interim Decision 2781 (BIA 1980)

Chan v. Bell, 464 F.Supp. 125 (D.D.C.1978)

Matter of McKee, Interim Decision 2782 (BIA 1980), and

Bark v. INS, 511 F.2d 1200 (9 Cir.1975).

Thank you very much for finding these! The reasoning and the holdings are QUITE interesting, aren't they?! Edited August 29, 2006 by am1996

[am1996 0]

For those who do not feel like reading these cases, please take a look at some of the representative holdings below (for the lawyers in the thread, these are all Keycite notes; also for the lawyers in the thread, I did not keycite/shepardize any of these cases but none of them have been overruled according to the keycite flags):

Chan v. Bell, 464 F.Supp. 125 (1978):

"Immigration and Naturalization Service erroneously denied to husband, an alien, classification as an "immediate relative" of his wife, an American citizen, with consequence that he would not receive an immigration visa, where, at time petition was filed, husband was lawful spouse of wife, although parties lived apart, no divorce or legal separation had taken place and no proceedings for divorce or legal separation had been instituted, with result that marriage was valid when petition was filed, and there was no contention that marriage was a sham at its inception, or that it was entered into for purpose of evading immigration laws. Immigration and Nationality Act, §§ 201( B ), 204( B ), 8 U.S.C.A. §§ 1151( B ), 1154( B )."

"Applicable statute expressly directs Attorney General to grant immediate relative status to alien spouse of an American citizen, without any reference whatever to marriage viability or solidity; indeed, another statute, the definitional section, excludes from definition of "spouse" only those situations where contracting parties to marriage ceremony are not physically present in presence of each other, and even that condition is waived when marriage shall have been consummated; although another statute places burden of proof on a petitioner to establish his status, once he does so, benefits are awarded by law, and Attorney General lacks power either to deny them or to exercise discretion with respect thereto. Immigration and Nationality Act, §§ 101(a)(35), 204( B ), 291, 8 U.S.C.A. §§ 1101(a)(35), 1154( B ), 1361."

"No rule or regulation issued by Attorney General or Immigration and Naturalization Service requires existence of a "viable" marriage as a precondition to grant of immediate relative status. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B )."

"In absence of clear congressional direction, e. g., statutory language that only viable marriages were to be regarded as valid for purposes of immigration laws, together with a precise definition of viability, Immigration and Naturalization Service's viability standard was untenable; Service could not, consistent with due process, be regarded as vested with both authority to establish vague and elusive concept of marriage viability and enormous power to regulate and enforce that concept in actual practice. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 14."

"Whatever may be power of Congress, notwithstanding Tenth Amendment, to establish for purposes of immigration laws a species of "spouse" in terms of viability of his or her marriage to other spouse, as distinguished from official, state-sanctioned marriage status, Immigration and Naturalization Service had no such power. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 10."

"An agency's interpretation cannot vary plain words of a statute and a court need not defer to an erroneous administrative construction."

Edited August 29, 2006 by am1996

[rebeccajo 14]

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

[john_and_marlene 162]

For those who do not feel like reading these cases, please take a look at some of the representative holdings below (for the lawyers in the thread, these are all Keycite notes; also for the lawyers in the thread, I did not keycite/shepardize any of these cases but none of them have been overruled according to the keycite flags):

Chan v. Bell, 464 F.Supp. 125 (1978):

"Immigration and Naturalization Service erroneously denied to husband, an alien, classification as an "immediate relative" of his wife, an American citizen, with consequence that he would not receive an immigration visa, where, at time petition was filed, husband was lawful spouse of wife, although parties lived apart, no divorce or legal separation had taken place and no proceedings for divorce or legal separation had been instituted, with result that marriage was valid when petition was filed, and there was no contention that marriage was a sham at its inception, or that it was entered into for purpose of evading immigration laws. Immigration and Nationality Act, §§ 201( B ), 204( B ), 8 U.S.C.A. §§ 1151( B ), 1154( B )."

"Applicable statute expressly directs Attorney General to grant immediate relative status to alien spouse of an American citizen, without any reference whatever to marriage viability or solidity; indeed, another statute, the definitional section, excludes from definition of "spouse" only those situations where contracting parties to marriage ceremony are not physically present in presence of each other, and even that condition is waived when marriage shall have been consummated; although another statute places burden of proof on a petitioner to establish his status, once he does so, benefits are awarded by law, and Attorney General lacks power either to deny them or to exercise discretion with respect thereto. Immigration and Nationality Act, §§ 101(a)(35), 204( B ), 291, 8 U.S.C.A. §§ 1101(a)(35), 1154( B ), 1361."

"No rule or regulation issued by Attorney General or Immigration and Naturalization Service requires existence of a "viable" marriage as a precondition to grant of immediate relative status. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B )."

"In absence of clear congressional direction, e. g., statutory language that only viable marriages were to be regarded as valid for purposes of immigration laws, together with a precise definition of viability, Immigration and Naturalization Service's viability standard was untenable; Service could not, consistent with due process, be regarded as vested with both authority to establish vague and elusive concept of marriage viability and enormous power to regulate and enforce that concept in actual practice. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 14."

"Whatever may be power of Congress, notwithstanding Tenth Amendment, to establish for purposes of immigration laws a species of "spouse" in terms of viability of his or her marriage to other spouse, as distinguished from official, state-sanctioned marriage status, Immigration and Naturalization Service had no such power. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 10."

"An agency's interpretation cannot vary plain words of a statute and a court need not defer to an erroneous administrative construction."

Viability of the marriage is not the questions in this thread, however. The question here is whether the marriage was for the purpose of immigration benefit and not bonafide. Viability of a marriage and bonafide marriage are two separate and distinct issues.

It could be found that the marriage is not bonafide even if there was no divorce filed and the couple were still living together.

The quick filing of divorce immediately after the AOS interview adds to the arguement that the marriage was for immigration purposes only.

[am1996 0]

Viability of the marriage is not the questions in this thread, however. The question here is whether the marriage was for the purpose of immigration benefit and not bonafide. Viability of a marriage and bonafide marriage are two separate and distinct issues.

It could be found that the marriage is not bonafide even if there was no divorce filed and the couple were still living together.

The quick filing of divorce immediately after the AOS interview adds to the arguement that the marriage was for immigration purposes only.

Please take a look at the other cases that have been cited above. They address and discuss the point you are making. I can't keycite I&N and Interim decisions, so I can't post keycite notes for them.

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

Rebecca, the quote above deals with specific jury instructions and the amount of "intent" that is necessary to convict a defendant with regard to the specific offense charged.

[john_and_marlene 162]

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

The standard of evidence for adjudicating the benefit differs from the standard of evidence in criminal trial. For the adjudication the standard is “preponderance of the evidence”. The stricter "clear and convincing" standard is not required to deny the benefit.

[rebeccajo 14]

Viability of the marriage is not the questions in this thread, however. The question here is whether the marriage was for the purpose of immigration benefit and not bonafide. Viability of a marriage and bonafide marriage are two separate and distinct issues.

It could be found that the marriage is not bonafide even if there was no divorce filed and the couple were still living together.

The quick filing of divorce immediately after the AOS interview adds to the arguement that the marriage was for immigration purposes only.

Please take a look at the other cases that have been cited above. They address and discuss the point you are making. I can't keycite I&N and Interim decisions, so I can't post keycite notes for them.

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

Rebecca, the quote above deals with specific jury instructions and the amount of "intent" that is necessary to convict a defendant with regard to the specific offense charged.

I realize that. Does the concept of 'reasonable man' have no bearing here?

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

The standard of evidence for adjudicating the benefit differs from the standard of evidence in criminal trial. For the adjudication the standard is “preponderance of the evidence”. The stricter "clear and convincing" standard is not required to deny the benefit.

Um, John - sorry you lost me. Can you say that to me again?

[am1996 0]

I realize that. Does the concept of 'reasonable man' have no bearing here?

That's correct. The concept of "reasonableness" has no bearing on jury instructions or the level of intent and the burden of proof required to convict a person of a criminal offense. The latter (jury instructions and the level of intent and the burden of proof required in criminal cases) has no bearing on the procedures and rules that USCIS is required to follow when adjudicating civil matters.

[Heracles 417]

I realize that. Does the concept of 'reasonable man' have no bearing here?

That's correct. The concept of "reasonableness" has no bearing on jury instructions or the level of intent and the burden of proof required to convict a person of a criminal offense. The latter (jury instructions and the level of intent and the burden of proof required in criminal cases) has no bearing on the procedures and rules that USCIS is required to follow when adjudicating civil matters.

Quick question, are you just out of college?

[geo1234 0]

I realize that. Does the concept of 'reasonable man' have no bearing here?

That's correct. The concept of "reasonableness" has no bearing on jury instructions or the level of intent and the burden of proof required to convict a person of a criminal offense. The latter (jury instructions and the level of intent and the burden of proof required in criminal cases) has no bearing on the procedures and rules that USCIS is required to follow when adjudicating civil matters.

Quick question, are you just out of college?

Quick question, why do you post when you do not seem to have even the slightest idea about any of the issues being discussed? Have you read any of the cases posted above?

[john_and_marlene 162]

Viability of the marriage is not the questions in this thread, however. The question here is whether the marriage was for the purpose of immigration benefit and not bonafide. Viability of a marriage and bonafide marriage are two separate and distinct issues.

It could be found that the marriage is not bonafide even if there was no divorce filed and the couple were still living together.

The quick filing of divorce immediately after the AOS interview adds to the arguement that the marriage was for immigration purposes only.

Please take a look at the other cases that have been cited above. They address and discuss the point you are making. I can't keycite I&N and Interim decisions, so I can't post keycite notes for them.

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

Rebecca, the quote above deals with specific jury instructions and the amount of "intent" that is necessary to convict a defendant with regard to the specific offense charged.

I realize that. Does the concept of 'reasonable man' have no bearing here?

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

The standard of evidence for adjudicating the benefit differs from the standard of evidence in criminal trial. For the adjudication the standard is “preponderance of the evidence”. The stricter "clear and convincing" standard is not required to deny the benefit.

Um, John - sorry you lost me. Can you say that to me again?

I was trying to keep the perspective on-track with the standard of evidence required to make an administrative ruling vs. a criminal conviction. The proof required for a jury to convict is much stricter and demanding than the standard of evidence in adjudicating an immigration benefit.

[rebeccajo 14]

Ok John. I think but am not sure that you and I are on the same page.

I thought the salient point in that ruling was the last sentence...."The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

As a layperson (which I am) to me this sort of gets to the heart of the OP's initial query.

And just for my understanding - why wouldn't jury instructions be a good place to look for an understanding of the law? I thought that's what jury instructions were - spelling out to laypeople what information they must look at and what reasoning they must use in order to come to a lawful conclusion. Not what they personally think is right or wrong, but what the law says.

LOL....I really hope I haven't spent the last 15 years of my life in this law office with my head up my proverbial rear.....

[am1996 0]

Ok John. I think but am not sure that you and I are on the same page.

I thought the salient point in that ruling was the last sentence...."The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

As a layperson (which I am) to me this sort of gets to the heart of the OP's initial query.

And just for my understanding - why wouldn't jury instructions be a good place to look for an understanding of the law? I thought that's what jury instructions were - spelling out to laypeople what information they must look at and what reasoning they must use in order to come to a lawful conclusion. Not what they personally think is right or wrong, but what the law says.

LOL....I really hope I haven't spent the last 15 years of my life in this law office with my head up my proverbial rear.....

Rebecca, what needs to be proven, by whom and according to what burden or proof is totally different depending on a criminal vs. a civil case. Even with civil cases, the above requirements differ based on the specific statutory authority that governs the issue. You can't use a ruling that discusses the requirements and the elements of proof of one statute (with its own specific requirements, burdens of proof, etc...) and apply those requirements to a completely different statute.