Out of the country before Conditions are Removed-Do you lose rights?

[FoundNanning 0]

It is my understanding that denial of Removal of Conditions for a foreign spouse requires the government to PROVE that the marriage is invalid. If they deny and you appeal, you can ultimately go before an immigration judge where the USCIS would have to present evidence of why they thought your marriage was invalid. However, what if you are out of the country and denied? Do you lose that protection (onus of proof on the government) and the right to appeal before an immigration judge? Can you just be denied re-entry without recourse?

[aaron2020 11,651]

It is my understanding that denial of Removal of Conditions for a foreign spouse requires the government to PROVE that the marriage is invalid. If they deny and you appeal, you can ultimately go before an immigration judge where the USCIS would have to present evidence of why they thought your marriage was invalid. However, what if you are out of the country and denied? Do you lose that protection (onus of proof on the government) and the right to appeal before an immigration judge? Can you just be denied re-entry without recourse?

You got it all wrong.

The burden is on you to prove that you have a bona fide marriage by submitting evidence when you file to remove conditions.

DUH. I provide no evidence of a bona fide marriage. Up to US government to prove not a real marriage when I have all the records.

You cannot remove the conditions from outside the US.

Read this; http://caselaw.findlaw.com/us-8th-circuit/1362035.html

A. Burden of Proof to Show Good-Faith Marriage During the adjudication of Ibrahimi's waiver of the joint-filing requirement, the IJ placed the burden of proof “on the Department” to show that Ibrahimi entered his marriage in good faith.   On appeal, the BIA reallocated the burden of proof, requiring that Ibrahimi be the one to establish that he entered a good-faith marriage.   Ibrahimi first argues that the BIA erred in placing the burden of proof on him and that the IJ was correct in stating that the Department bore the burden.   Ibrahimi further claims that even if the IJ improperly allocated the burden of proof, the BIA erred in reallocating that burden without comment.   This court reviews “an agency's legal determinations de novo, according substantial deference to the agency's interpretation of the statutes and regulations it administers.”  Llapa-Sinchi v. Mukasey, 520 F.3d 897, 899 (8th Cir.2008) (quotation omitted). - See more at: http://caselaw.findlaw.com/us-8th-circuit/1362035.html#sthash.hm02mI0U.dpufSection 1186a© governs petitions to remove the conditions on permanent-resident status and waive the joint-filing requirement.   Contrary to Ibrahimi's argument, and in line with the BIA's decision, this section places the burden of proof to establish a good-faith marriage on the alien when that alien files a petition to remove the conditional basis of his permanent resident status:The Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) if the alien demonstrates ․ the qualifying marriage was entered into in good faith by the alien spouse․”8 U.S.C. § 1186a(4) (emphasis added);  see also Nyonzele v. INS, 83 F.3d 975, 980 (8th Cir.1996);  Roos v. U.S. Attorney Gen., 167 Fed.Appx. 752, 754-55 (11th Cir.2006) (unpublished);  Gaur v. Gonzalez, 124 Fed.Appx. 738, 740 (3d Cir.2005) (unpublished).4  The fact that the BIA corrected the IJ's erroneous allocation of the burden of proof without comment does not require a remand.   The BIA had the power to conduct a de novo review of the IJ's legal conclusions pursuant to 8 C.F.R. § 1003.1(d)(3)(ii).   It did not, therefore, err when it corrected the IJ's misstep without comment.   Cf. De Brown v. Dept. of Justice, 18 F.3d 774, 778 (9th Cir.1994) (finding no error when the BIA affirmed the IJ's conclusion after applying a different standard of proof than the IJ).   We conclude that the BIA properly placed the burden on Ibrahimi to show that he entered his marriage in good faith. - See more at: http://caselaw.findlaw.com/us-8th-circuit/1362035.html#sthash.hm02mI0U.dpuf

[FoundNanning 0]

aaron2020 - Thank you for your detailed response.

One clarification and one curiosity:

- My wife will not remove conditions from outside the US. She will file while here, but she will potentially be out of the country when she receives a decision.

- Re: Burden of Proof: Does VisaJourney have it wrong?

http://www.visajourney.com/content/751guide

Step-by-Step Guide on Removing of Conditions (Form I-751)

On the "don't panic" front -- ultimately the burden of proof is on the CIS to show a fraudulent marriage. Even if CIS denies, the application can be renewed in front of an Immigration Judge (IJ) in Removal Proceedings -- and the IJ's tend to APPROVE those cases.

[aaron2020 11,651]

http://www.visajourney.com/content/751guide

Step-by-Step Guide on Removing of Conditions (Form I-751)

On the "don't panic" front -- ultimately the burden of proof is on the CIS to show a fraudulent marriage. Even if CIS denies, the application can be renewed in front of an Immigration Judge (IJ) in Removal Proceedings -- and the IJ's tend to APPROVE those cases.

A guide by a bunch of people on the internet is not US law. It's not official.

There is a court case. That is the interpretation of the law.

[FoundNanning 0]

Thanks for that.

Regardless of the "burden of proof" issue (as important as it is), my second question is even more important (for me). If we are out of the country after filing, and are issued a denial,will her green card be cancelled barring her rentry to the United States and therfor losing the opportunity for review before an immiogration judge?

[christeen 966]

Yes, she will be denied entry...

[Harpa Timsah 13,258]

Why would she be denied?

[aaron2020 11,651]

Why would she be denied?

Expired conditional green card.

[FoundNanning 0]

BUT!!!! After you are denied, you have 39 days to appeal the case (so your case can be heard by an immigration judge). So, would they let you in if it was still within that 30 day appeal "window", or do you lose that right of appeal because you are out of the country and they will not let you back in? If this it true, than NO ONE should ever travel after filing, on the small chance that they might be denied while out of the country.

[Harpa Timsah 13,258]

Expired conditional green card.

Why would her ROC be denied when she is out of the country?

If the ROC filing is not sufficient, then they send RFE, if not good enough, interview, then second interview. It would be hard to just be outside the US and get a denial out of the blue.

And why does the OP think it will be denied? Was the marriage not bona fide?

[Yurika & Jim 77]

Here is OP's original questions http://www.visajourney.com/forums/topic/493293-filing-i-751-but-leaving-the-country-for-an-extended-time/?p=6969662

Edited May 3, 2014 by Yurika & Jim

[Fifth Echelon 6]

How long does one typically have to respond to an RFE? One scenario would be if the OP was outside the country when the RFE was received, and wasn't able to return to the US in time to submit a timely response, which could lead to a potential denial.