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

[Crazy Cat 41,881]

2 minutes ago, geowrian said:

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.

and if the denial was based on lack of sufficient evidence, the burden shifts to the immigrant to provide sufficient evidence it seems to me.

[geowrian 22,337]

2 minutes ago, Jameson78 said:

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?

Agreed...ROC is basically a giant burden to both the immigrants and USCIS. It doesn't do much to serve it's intended purpose.

[Jameson78 32]

6 minutes ago, geowrian said:

Agreed...ROC is basically a giant burden to both the immigrants and USCIS. It doesn't do much to serve it's intended purpose.

As far as I can tell, most of USCIS is there to provide a sop to the base of whichever political party is in power  - making it 'rigorous' and excessively onerous to get status if the Republicans are in, or make it facile if the Democrats are in. It's very hard to get yourself deported unless you are really up to some serious shenanigans, and even then....that said, it's a great job creation scheme in methed-out Vermont, or pseudo-Mexico Orange County, so I get it from that perspective. I just wish they'd triple the filing fees so that they can staff it adequately, and make everyone's life easier.

Edited July 26, 2018 by Jameson78

[Diane and Chris 651]

@Jameson78 are you currently going through ROC?  If so, why do you seem so worried that you will not get approved?  If you have sufficient evidence to prove a bona fide marriage it shouldn’t be a problem. My suggestion would be to try not to act too arrogant. Be humble and answer all questions honestly. Can you give us a timeline for you and your spouse?  

[Dashinka 24,505]

8 hours ago, Jameson78 said:

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?

Probably why most ROCs are approved. 

[EM_Vandaveer 2,408]

AFAIK it's extremely rare for a ROC case that goes to immigration court to be denied. The judge usually grants ROC (I'm assuming people use lawyers for this, I personally would not want to have to plead my own case in that situation).

Presumably out of the few (less than 5%) ROC filings that USCIS denies, the cases where the denial was actually correct, the immigrant doesn't fight it/doesn't show up for their IC hearing.

[Eric The Wait 40]

I am the original poster of this thread. Jameson was simply responding to inquiries I had made. 

My wife and I are the ones who will be applying for her ROC very soon. We did not co-mingle our assests (hers being extensive) because I had liabilities and we could not have her assests exposed to those liabilities. 

The liabilities were recently resolved, so we co-mingled in 2018, but we were married June, 2016. I certainly will be explaining to USCIS the very legitimate reason for not co-mingling, but I want to be ready for every contingency. Another responder on this thread gave me very good advice not to plan on getting denied, but we have this giant gap in our financial proofs. 

Now, back to this burden of proof question which is quite fascinating. I am finding opinions here and off site that differ with respect to whether or not a denied ROC applicant has the burden of proof before the Immigration Judge. I now think I can answer the question.

I did some digging. Check this out: From MATTER OF MENDES,  In Deportation Proceedings, Decision  A-29018206 from the Imigration Appeal Court, reviewing the actions of an Immigration Decision at the Trial Level. 

"A second consequence of the section of law under which the Service adjudicates the petition is the allocation of the burden of proof in the ensuing deportation proceedings if the conditional permanent resident status is terminated. In a deportation proceeding premised on section 216(c)(2)(B) of the Act (failure to file a petition or failure to appear for the interview), the burden of proof is on the alien to establish compliance with the requirements for a joint petition and interview. Id. ; 8 C.F.R. § 216.4(a)(6) (1994). On the other hand, in a deportation proceeding premised on section 216(c)(3)(D) of the Act (Service's adverse determination on the merits of the joint petition), the burden is on the Service to show by a "preponderance of the evidence" that the facts and information set forth by the petitioners in the joint petition are not true and that the petition was properly denied. Id. ; 8 C.F.R. § 216.4(d)(2) (1994); see also Matter of Lemhammad , 20 I&N Dec. 3151 (BIA 1991) (discussing the burden of proof in proceedings premised on section 216(b)(2) of the Act). "

Missileman, note the underlined "and" is NOT an "or".

Here's a United States Court of Appeals Decision from 2010, supporting Jameson's conclusion that Government has burden of proof if USCIS (INS) declines an ROC application based on Lack of Proof of bona fide marriage: 

Ivad Mohammed HAMMAD, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. No. 07-72370.     Decided: April 22, 2010

If the INS does not terminate the alien's conditional resident status under § 1186a(b)(1), then ninety days before the end of the two-year period of conditional status, the alien may attempt to remove the conditional aspect of the permanent resident status by following the procedure outlined in § 1186a(c). First, the alien and spouse must jointly file a petition requesting removal of the condition. § 1186a(c)(1)(A). Next, the alien and spouse must appear for a personal interview before the INS. § 1186a(c)(1)(B). Following the interview, if the INS determines that the alien's marriage to the citizen was entered into in good faith, the INS will remove the condition on the alien's resident status. § 1186a(c)(3)(A)-(B). If the INS makes an unfavorable determination, it will terminate the alien's resident status as of the date of the determination. § 1186a(c)(3)(C). The alien may appeal this determination to the BIA, in which case the burden of proof is on the INS “to establish, by a preponderance of the evidence, that the facts and information [contained in the petition] are not true with respect to the qualifying marriage.” § 1186a(c)(3)(D).

Therefore, I respectfully suggest Jameson may be accurate in his interpretation. Missileman (whom I very much appreciate for responding to my inquiry) may not be entirely accurate in his assessment.

That being said, Missleman raises an interesting question regarding an ROC applicant who basically does nothing but send in the form and pay the fee. I think in that extreme circumstance where the applicant doesn't even try to cooperate with USCIS in the review process, the Court may have a way to punish them. I believe in the law there is something known as "Complying with Administrative Remedies". In other words, by sending what evidence they have to USCIS, which is an administrative agency not a court, and at least making a facially good faith attempt to allow USCIS to review what evidence the ROC applicant can present, then the ROC applicant will have met their obligation to Comply with Administrative Remedy. Once the ROC applicant does that and USCIS says "nope, not good enough", then I believe based on above case, in Court the Justice Department lawyer must prove fraud or otherwise prove that the ROC applicant should not be granted the 10 year green card.

In our case this burden of proof issue is critical. Because we can't show any co-mingling for the first year and half of our marriage, USCIS could very easily say that my wife shouldn't get her Green Card. We do have some other evidence of a bona fide relationship. For example, I work late hours and leave the office at different times every night. Therefore, I almost always send my wife a facebook messenger message saying: "Leaving the office now. Should be home by 8:30..." or 9:00 or whatever. It's different time every night so this let's her plan for dinner. It's going to be a pain in the ### but I will print out screen shots from the last two years of each of those facebook messages (which are dated). It's going to be 400 pages of messages during half of 2016 and all of 2017. The messages are at least some evidence that we are living together as who sends 400 messages saying what time they coming home over a year and a half unless they are in a relationship with that recipient. But, I believe USCIS (not sure) is going to be singularly unimpressed by this evidence. However, in Court, especially where the Justice Dept. lawyer will have the burden to show our relationship is a sham, I believe a Judge would find the 400 pages of messages to be convincing. Additionally, it would be the Government's burden to show that the 400 pages of messages as described are phony (they're not phony and our relationship is certainly genuine and bona fide PERIOD) and it would NOT be our burden to prove the messages are not manufactured. 

There have been new directives for USCIS to stop sending out so many RFE's and refer more cases directly for deportation proceedings. Now this policy may actually be directed at those who file petitions without including any evidence, as referenced above. But who knows: Maybe USCIS is going to look at our case and say:"These people want 400 pages of facebook messages to cover the period when they weren't co-mingling, sorry we're unimpressed." 

Here's my opinion why the burden of proof switch in Court makes sense:  "How much evidence is enough?" There's no clear answer. The best evidence of bona-fide marriage is co-mingled assets from time of marriage and we don't have that. We've got jointly filed tax returns, but that's it and I have been told that's not exactly strong evidence because married people living apart can easily file jointly. 

So, "How much evidence is enough?" if the burden of proof is on the ROC applicant in Court, then the legal process becomes quite arbitrary. "Oh, you people didn't co-mingle until 18 months after marriage to protect immigrant wife's substantial assets...well tough beans husband had financial issues so wife is outta here. Get her on a plane tomorrow." (In case you're wondering, at AOS immigrants can self sponsor if they have a ton of cash assets. Suffice it to say we don't face any risk of assertion that my wife will become a public charge.) But if the Government has the buden to show the marriage is a fraud, they are unlikely to meet that burden simply because a couple has some holes in their evidence. This makes the process far less arbitrary and convinces me that regardless of USCIS being unimpressed with our evidence, the Justice Department will never be able to sustain their burden of proof that our marriage is a fraud....because it's not a fraud.

We simply want to know that we're in a winning position here and not helpless pawns subject to possibly arbitrary procedures. 

So, while Jameson is surely right that most ROC applicants who get deported are either surely frauds or lazy beyond compare, I want as much information as I can going into this process. That's why I asked the questions. 

Edited July 26, 2018 by Eric The Wait
Typo

[geowrian 22,337]

Since court cases have now been brought up, I will also refer to:

 

Lopez Vs Holder, 2014 (https://caselaw.findlaw.com/us-1st-circuit/1655077.html):

"Evelyn Lopez petitions for review of a January 30, 2013 Board of Immigration Appeals (“BIA”) decision, adopting a June 14, 2011 decision by an Immigration Judge (“IJ”), ordering removal. It also denied her requests for waivers based on “extreme hardship,” 8 U.S.C. § 1186a(c)(4)(A), and “good faith,” id. § 1886a(c)(4)(B), of the joint-filing requirement for removal of conditions on permanent residency, id. § 1186a(c)(1)(A), both because she had failed to establish either “good faith” or “extreme hardship” and because the petition was denied in any event, in an exercise of the IJ's discretion, due to concerns with petitioner's moral character. That exercise of discretion dooms her petition."

 

Kinisu Vs Holder, 2013 (https://caselaw.findlaw.com/us-1st-circuit/1640696.html):

"Emmanuel Kinisu, a native and citizen of Kenya, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the ruling of an Immigration Judge (IJ).   The IJ ruled that Kinisu had not met the standard for waiver of the usual requirement of filing a joint petition with a spouse in order to remove the conditions from his conditional permanent residency.   Before the IJ, Kinisu, who did not file jointly with his ex-wife, had argued that he was entitled to removal of the conditions based on his marriage to an American citizen, despite the fact that the marriage had ended in divorce.   This argument required proof that the marriage had been entered into in good faith, a burden that the IJ found Kinisu failed to meet.   Accordingly, the IJ determined that his resident status had been terminated and ordered his removal from the United States, subject to voluntary departure.   The BIA adopted and affirmed the IJ's decision. "

 

Note the process here, though. There is a difference between a case brought in front of the BIA vs one brought in front of an appellate or district court. The BIA is subject to the DOJ...for example, the acting AG can vacate any decision.

[Eric The Wait 40]

Kinisu Case can not be squared with Mendes case I cited. I again quote Mendes: "On the other hand, in a deportation proceeding premised on section 216(c)(3)(D) of the Act (Service's adverse determination on the merits of the joint petition), the burden is on the Service to show by a "preponderance of the evidence" that the facts and information set forth by the petitioners in the joint petition are not true and that the petition was properly denied. Id. ; 8 C.F.R. § 216.4(d)(2)"

The only way to square Kinisu and Mendes, as I see it, is that the case you cited involves a divorce situation in which there is no Joint Petition. That does not apply to my wife and me. 

The case I cited, Mendes, does involve a Joint Petition and the Court specifically references "adverse determination on the merits of the joint Petition." 

Therefore, I respectfully assert that the Kinisu case only establishes that in cases of divorce where there is no joint Petition, the buden of proof switches back to applicant. 

 

[Eric The Wait 40]

The Lopez case you also cited is not applicable to the circumstance in question. There, the Petitioner first failed to to appear for an interview. Please read the Mendes case I cited again and you'll see in that circumstance the ROC applicant does have the burden of proof. But, once a couple files on time and appears for an interview, if the USCIS denies on the merits, it shall have the burden of proof. This language is not ambiguous: "In a deportation proceeding premised on section 216(c)(2)(B) of the Act (failure to file a petition or failure to appear for the interview), the burden of proof is on the alien to establish compliance with the requirements for a joint petition and interview. Id. ; 8 C.F.R. § 216.4(a)(6) (1994). On the other hand, in a deportation proceeding premised on section 216(c)(3)(D) of the Act (Service's adverse determination on the merits of the joint petition), the burden is on the Service to show by a "preponderance of the evidence" that the facts and information set forth by the petitioners in the joint petition are not true and that the petition was properly denied."

My wife and I fall into the "on the other hand" category.

Additionally, in Lopez, there never was a Joint Petition. After denied for missing the interview, she got divorced and filed for a waiver. This would bring it into the same class as the Kinisu case you cited, which, as mentioned in the post above, is inappplicable to cases involving a Joint Petition. Kinisu and that aspect of Lopez are both waver cases where there is no joint Petition. The third ground for review in Lopez was "undue hardship", which I believe we can all agree is the hardest standard and the applicant will surely have the buden of proof there.

Therefore and respectfully, based on my review of the two case you cited I am comfortable asserting  that those opinions would not be applicable to case of a Joint Application denied by USCIS on the merits of the evidence. Therefore, those two cases do not in any way rebut my assertion, based on the Mendes and Hammad cases, which more clearly reference the position of my wife and me - joint Petition filers - who intend to not get divorced, not miss the filing date and not blow off the interview :-)   -  that the burden of proof remains with Government. 

Edited July 26, 2018 by Eric The Wait

[Going through 5,671]

48 minutes ago, Eric The Wait said:

The best evidence of bona-fide marriage is co-mingled assets from time of marriage and we don't have that. We've got jointly filed tax returns, but that's it and I have been told that's not exactly strong evidence because married people living apart can easily file jointly. 

You have co-mingling of bank accounts now, you have previous joint tax filings, you have proof of a shared address...I'm assuming you have proof of shared health insurance/retirement/will statements, and joint utility bills/car payments by now as well.  You also have a viable explanation as to why they were not co-mingled before.

 

You also have to take into account that when you reach the ROC stage, the IO is also privy to looking through the entire immigration file leading up to then, not just the ROC application/evidence on it's own.  Considering the evidence of a bonafide relationship you had to submit for the K1 filing, and then the amount of evidence of a bonafide marriage you had to submit for the AOS filing----this is all in your favor as well when it comes to the ROC stage.

[Eric The Wait 40]

Thanks Going Through. 

Your comment is very much appreciated. I am getting into the weeds here and I should probably step back and just focus on providing USCIS with everything we have and believe it will be enough to avoid a denial and then going down the rabbit hole of judicial procedure.

Aslo, you make a great point about the IO being able to look through the K1 and AOS files. There's some good stuff in there covering the second half of 2016 up to Feb 2017 when my wife got the 2 year green card. T

Great point. Thank you!!! 

[geowrian 22,337]

The cases were cited with respect to the burden of showing that the marriage was entered into in good faith, not the underlying merits of the individual cases. Those are separate issues.

[Amadia 711]

16 hours ago, Jameson78 said:

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?

Correct me if I'm wrong, but @geowrian and @missileman did not reach Platinum Member status by guess work......they really know their stuff.  

[geowrian 22,337]

Just now, Amadia said:

Correct me if I'm wrong, but @geowrian and @missileman did not reach Platinum Member status by guess work......they really know their stuff.  

True, but I've done that by being wrong many times first. So never take anything at face value (although I do still believe based on understanding of the law and process that the burden is on the alien seeking the benefit).

 

Either way, I think the argument about burden is pretty moot since it does not impact the actions one must take. You need to show your case either way, and all decisions on it will be treated the same regardless of who has the burden. This is going down a dark, complicated path of court processes, which are best addressed via one's experienced attorney as there are a lot of technical aspects at that level that often are very specific to one's circumstances. It is also something that would very likely be years away in the OP's case, even if the initial I-751 were denied.