Removal of Conditions: Right to remain in US, and out of detention facility, until opportunity to defend case before a Judge

[Eric The Wait 40]

Assume USCIS determines evidence of bona-fide marriage is insufficient and they deny application to remove conditions. Assume further the denial is NOT based on a failure to file ROC application within 90 days of conditional green card expiration, not based on failure to pay all fees, not based on failure to enclose copy of green card or any technical failures to fill out the forms. Instead, the denial is based on USCIS's determination that the evidence of bona fide marriage is not sufficient. 

Is the following accurate:::: If not, kindly correct where applicable.

1. Before the former Green Card Holder can be deported she has the right to appear before a Judge.
2. When she appears before the Judge the Government has the buden of proof to show that she is not in a bona fide relationship. 
3. Even though her Green Card will have expired and her extension letter will be useless because USCIS denied her ROC Petition, the former Green Card holder will be able to stay in her home (which she owns by the way) while she waits for her Court date. In other words, ICE will not be able to detain her in one of its detenion centers while she waits for her hearing before a Judge. (She has not committed any crimes, ever.)
4. She won't be able to work. (This is no issue. No need to work.)
5. She would be wise not to leave the country, because out of status means she can't get back in. (She has no pressing family issues or anything which would prompt her to travel abroad.)
6. If the Justice Department fails to prove that her relationship with her husband is not bona fide, the Judge must grant her a 10 year Green Card.
7. The rule that Government must prove the marriage is a sham at Trial is a statute that only Congress can change. In other words, current President and/or the current heads of DHS or Justice Dept. would not have the authority, by executive order or agency fiat, to eliminate the burden of proof rule thereby making it easier to kick denied ROC Petitioners out of the country. 

 
Thanks for any insight. While planning to do best job we can meet proof requirements for USCIS for ROC, would like to know the ins and outs of entire process, and get some insight into what rules could be changed quickly and which ones require an act of Congress which may be far less likely to raise the hurdles on legal immigrants than the current executive branch. 

  

 

Edited July 25, 2018 by Eric The Wait
Typo

[Crazy Cat 41,845]

Did you know that in the 1st two quarters of FY 2018, only about 5% of ROC cases have been denied?  I would think only extremely poorly prepared cases would not be approved.

[geowrian 22,337]

1. Yes
2. No. You are applying for a benefit and therefore are responsible for demonstrating the facts of your case that the marriage is bona fide.
   1. If it were the other way around, one could theoretically submit no evidence and be approved just because USCIS had nothing to use against them.
3. Assuming the only issue is a denied ROC, yes. Until an IJ determines otherwise, she can maintain LPR status. She can get an I-551 stamp via an InfoPass appointment to act as a green card for 1 year at a time...until LPR status is removed.
   1. Note that you can file an I-751 again even if denied, and USCIS must adjudicate that before removal. So it's not just a one-and-done process if one wants to fight it.
4. False - she can work. She can use an unrestricted SSN card + driver's license or other proper unexpired ID to satisfy I-9 requirements. Or she can use the I-551 stamp.
5. She can travel abroad fine and return, assuming she has an I-551 stamp.
6. See #2 - she must prove her case, not the other way around.
7. See #2 again.

But you are wayyyy jumping the gun...if you have a bona fide marriage, then donm't worry about being denied. There are a very small number of cases where ROC is denied initially (and eventually overcome)...don't go into the process expecting or anticipating a denial.

Edited July 25, 2018 by geowrian

[Crazy Cat 41,845]

It seems to me that , with a little planning, sufficient evidence for removal of conditions will not be too difficult to produce.  Brownimmigrationlaw.com has a good list:

 

This is a general list of documents to show a good-faith marriage as required to remove the conditions on your current permanent resident status.  While we ideally want to include as much evidence as possible, we understand that not all the items listed below will apply.   Please provide what documents you can and we will work through any special circumstances.

– Joint tax returns from the previous 2-3 years;
– Joint bank statements (these should date back to when you first opened the account or at least since you have been married);
– Copies of driver’s licenses showing the same address;
– Mortgage or lease agreement with both names;
– Copies of joint credit cards (many statements have a “members since” date so a current one will be fine);
– Copies of any joint utilities or cell phone bills;
– Copies of life insurance policies naming the other as a beneficiary;
– Joint retirement or savings account statements (again, it is helpful to have a history covering your marriage or proof of beneficiary designated);
– Copies of any estate planning documents naming the other as a beneficiary;
– Copies of joint vehicle titles;
– Joint airline/vacation reservations;
– Photos of the two of you together and with family;
– Birth announcements, photos, sonograms, etc. for any children or soon-to-be born children;
– Any other joint assets or holdings (including stocks or trading accounts);
– 2 U.S. passport-style photos (This is only mandatory if living overseas);
– Names of 2 people, preferably on the U.S. Citizen’s side of the family or mutual friends willing to sign an affidavit confirming the authenticity of your marriage.

The information in red typically holds the most weight with USCIS, so we want to provide them, if applicable.  Overall, we want to provide 7-8 items from the list when filing.  Please do not hesitate to ask questions as we go through this process and we look forward to working with you.

[Going through 5,671]

I've been following a few of your previous threads as you prepare for your ROC...and it's good that you research and prepare for possible outcomes...but really I do believe you're putting the cart before the horse here, as the saying goes.

 

I honestly think you have more documentation of a bonafide relationship than you realize, judging by evidence you've mentioned in past threads, and I wish you and your wife the best of luck moving forward.

[Jameson78 32]

1 hour ago, geowrian said:

1. Yes
2. No. You are applying for a benefit and therefore are responsible for demonstrating the facts of your case that the marriage is bona fide.
   1. If it were the other way around, one could theoretically submit no evidence and be approved just because USCIS had nothing to use against them.
3. Assuming the only issue is a denied ROC, yes. Until an IJ determines otherwise, she can maintain LPR status. She can get an I-551 stamp via an InfoPass appointment to act as a green card for 1 year at a time...until LPR status is removed.
   1. Note that you can file an I-751 again even if denied, and USCIS must adjudicate that before removal. So it's not just a one-and-done process if one wants to fight it.
4. False - she can work. She can use an unrestricted SSN card + driver's license or other proper unexpired ID to satisfy I-9 requirements. Or she can use the I-551 stamp.
5. She can travel abroad fine and return, assuming she has an I-551 stamp.
6. See #2 - she must prove her case, not the other way around.
7. See #2 again.

But you are wayyyy jumping the gun...if you have a bona fide marriage, then donm't worry about being denied. There are a very small number of cases where ROC is denied initially (and eventually overcome)...don't go into the process expecting or anticipating a denial.

Most of this is correct, except for the burden of proof. In this court, as in all other courts, the burden of proof rests with the party filing the motion, i.e., the government in this case. Basically, nobody gets deported in this situation unless a) they actually want to/don't care, or b) they are functionally retarded, or c) they can't afford/are too feckless to get a lawyer. 

 

As you surmised, the government must indeed show that you intended to defraud the system by engaging in a fraudulent marriage, without an underlying legitimate relationship. Unless you have been caught red-handed doing this (i.e., you've been recorded discussing how to go about the scam with your associates/the government has acquired incriminating emails or texts or social media posts), then you're going to win, in a nutshell. This effectively demonstrates that the entire ROC process is a waste of time, save for maybe catching a few percent of the people who engage in fraud of this nature and are dumb enough to incriminate themselves to a degree which satisfies the burden of proof standard in legal proceedings.

 

That said, you would obviously need to get a lawyer. Regardless of whether or not someone is guilty of what they're accused off, almost everyone without a lawyer loses their case in immigration court, while almost everyone who retains one wins. The reason being that you would be highly likely to trip yourself over on some procedural technicality, or answer questions that you don't need to, without the guidance of competent counsel.

Edited July 25, 2018 by Jameson78

[Amadia 711]

Assumptions only create anxiety.....relax....follow the process accurately.....file and provide the required evidence....you will be fine.

[Crazy Cat 41,845]

1 hour ago, Jameson78 said:

Most of this is correct, except for the burden of proof. In this court, as in all other courts, the burden of proof rests with the party filing the motion, i.e., the government in this case.

These attorneys say differently.

 

https://www.avvo.com/legal-answers/burden-of-proof-on-uscis-or-immigrant-in-immigrati-1641677.html

[Jameson78 32]

4 minutes ago, missileman said:

These attorneys say differently.

 

https://www.avvo.com/legal-answers/burden-of-proof-on-uscis-or-immigrant-in-immigrati-1641677.html

Did you read your own link?

 

(a) Deportable aliens. A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged. 

 

As to the rest of them, they are shilling for business, without citing any rules or statutes.

Edited July 26, 2018 by Jameson78

[Jameson78 32]

19 minutes ago, missileman said:

These attorneys say differently.

 

https://www.avvo.com/legal-answers/burden-of-proof-on-uscis-or-immigrant-in-immigrati-1641677.html

To elaborate on the post above: can you even imagine a judicial system under which the burden of proof rest on the respondent, lol? So if someone maliciously files a motion against missileman for molesting his daughter, simply because the complainant dislikes missileman, the burden of proof rests on missileman to prove that he has never done so, otherwise he is liable? I mean, I dislike government as much as the next right winger, but the west hasn't (yet?) allowed its judiciary to plummet those kind of depths, thank goodness.

Edited July 26, 2018 by Jameson78

[Crazy Cat 41,845]

6 minutes ago, Jameson78 said:

To elaborate on the post above: can you even imagine a judicial system under which the burden of proof rest on the respondent, lol? So if someone randomly files a motion against missileman for molesting his daughter, simply because the complainant dislikes missileman, and the burden of proof rests on missileman to prove that he has never done so, otherwise he is liable? I mean, I dislike government as much as the next right winger, but the west hasn't (yet?) allowed its judiciary to plummet those kind of depths, thank goodness.

If an I-751 is denied due to lack of evidence of a bona fide marrage, who has the burden of proof?  Would the immigrant not have to provide sufficient evidence to sway the IJ?

[Jameson78 32]

7 minutes ago, missileman said:

If an I-751 is denied due to lack of evidence of a bona fide marrage, who has the burden of proof?  Would the immigrant not have to provide sufficient evidence to sway the IJ?

In the i-751 process, the immigrant does indeed face burden of proof, yes. When you get to immigration court, which is a formal legal proceeding, then the burden of proof flips, as the first post in the link that you provided clearly demonstrates. When it gets to that stage, the USCIS must prove that you intended to evade the immigration laws of the U.S. This is impossible, unless they have first-hand evidence of the respondent endeavouring to engage in fraud. 

 

Obviously, they do catch people doing so on occasion, like the Russian-Israeli Chabad Mafia sisters who engaged in marriage fraud pertaining to the San Bernardino shooting. But it's very rare, especially with a low-rent government lawyer and limited budget to spend on discovery, and even more especially if the respondent can afford to hire an attorney who didn't graduate from the University of the District of Columbia law school.

Edited July 26, 2018 by Jameson78

[geowrian 22,337]

2 hours ago, Jameson78 said:

Most of this is correct, except for the burden of proof. In this court, as in all other courts, the burden of proof rests with the party filing the motion, i.e., the government in this case. Basically, nobody gets deported in this situation unless a) they actually want to/don't care, or b) they are functionally retarded, or c) they can't afford/are too feckless to get a lawyer.

The burden is on the petitioner to show they qualify for the benefit being sought (ROC), at least while USCIS has it. This means the petitioner must show that they entered into the marriage in good faith, not the government showing that it was entered into via fraud. This a requirement under the INA with USCIS being granted to power to make this determination.

 

Once it goes to court, the only thing USCIS (well, DHS) has to show is that the I-751 was denied and therefore the alien can be ordered removed. That's their burden, not the merits the of the decision. Of course the defendant will argue that the I-751 was adjudicated improperly, but then they are responsible for proving this assertion.

 

From a slightly more technical stance, it works like this:

1) USCIS denies the I-751 and asserts that the alien is now removable, thereby issuing an NTA for a hearing.

2) An IJ reviews the case. The burden on DHS is only to show that the alien is removable due to failure of removing conditions. The alien can argue that they are not removable because the I-751 was improperly adjudicated.

3) The IJ makes a ruling, either determining that the I-751 was improperly denied and ordering DHS to approve it, or confirms that the I-751 was properly adjudicated and therefore the alien can be ordered removed. They can also plead for a hardship waiver in some circusmtances.

4) The ruling can be appealed to a federal appellate court, which reviews the prior case.

 

Note that this is different than almost any other removal situation in which it is the government initiating a procedure against the alien and therefore has the burden to prove their case.

Edited July 26, 2018 by geowrian

[Crazy Cat 41,845]

1 minute ago, Jameson78 said:

In the i-751 process, the immigrant does indeed face burden of proof, yes. When you get to immigration court, which is a formal legal proceeding, then the burden of proof flips, as the first post in the link that you provided clearly demonstrates. When it gets to that stage, the USCIS must prove that you intended to evade the immigration laws of the U.S. This is impossible, unless they have first-hand evidence of the respondent endeavouring to engage in fraud. 

 

Obviously, they do catch people doing so on occasion, like the Russian-Israeli Chabad Mafia sisters who engaged in marriage fraud pertaining to the San Bernardino shooting. But it's very rare, especially with a low-rent government lawyer and limited budget to spend on discovery, and even more especially if the respondent can afford to hire an attorney who didn't graduate from the unviersity of the District of Columbia law school.

An I-751 can be denied for lack of evidence of legitimate marriage, correct?  If that happens, the immigrant can receive an NTA, correct?  It seems to me that if the immigrant is placed before an IJ for that reason, it would be pretty easy for the immigrant to lose unless he/she assembled a convincing package of evidence to counter the "lack of evidence"......thus assuming the burden of proof.

[Jameson78 32]

3 minutes ago, geowrian said:

The burden is on the petitioner to show they qualify for the benefit being sought (ROC), at least while USCIS has it. This means the petitioner must show that they entered into the marriage in good faith, not the government showing that it was entered into via fraud. This a requirement under the INA with USCIS being granted to power to make this determination.

 

Once it goes to court, the only thing USCIS has to show is that the I-751 was denied and therefore the alien can be ordered removed. That's their burden, not the merits the of the decision. Of course the defendant will argue that the I-751 was adjudicated improperly, but then they are responsible for proving this assertion.

 

From a slightly more technical stance, it works like this:

1) USCIS denies the I-751 and asserts that the alien is now removable, thereby issuing an NTA for a hearing.

2) An IJ reviews the case. The burden on DHS is only to show that the alien is removable due to failure of removing conditions. The alien can argue that they are not removable because the I-751 was improperly adjudicated.

3) The IJ makes a ruling, either determining that the I-751 was improperly denied and ordering DHS to approve it, or confirms that the I-751 was properly adjudicated and therefore the alien can be ordered removed. They can also plead for a hardship waiver in some circusmtances.

4) The ruling can be appealed to a federal appellate court, which reviews the prior case.

 

Note that this is different than almost any other removal situation in which it is the government initiating a procedure against the alien and therefore has the burden to prove their case.

Interesting, thank you for the technical insight. In practice, I think we both know that unless the USCIS demonstrates that the i-751 was denied for good cause, which is very difficult without proof that there was an element of fraud involved, then the respondent almost always wins.  Otherwise, how come almost all of these cases are won by respondents who retain counsel?

Edited July 26, 2018 by Jameson78