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]

Geowrian: Interesting point abouit BIA verses District Court cases. I'll look into that distinction some more. 

Not sure what you meant in the last post. I thought we were discussing burden of proof where USCIS denies a Joint Petition for a reason other than failure to file on time, failure to pay the fee, failure to show up on time, and/or committing felony. The only basis left to deny the ROC Petition would be "on the merits", meaning  USCIS thinks the evidence for bona fide marriage sucks. In that case,  I believe the Government clearly has the burden of proof once the case goes to Court. 

Here's where I think we are so far: For questions related to whether the Petition was filed on time and whether the Petitioner(s) showed up for the interview, the ROC Petitioner / applicant  has the burden of proof on those narrow issue. If it is Joint Petition (meaning no divorce and no waiver request) and the case is before the Court because USCIS denied the Petition based on its opinion that the evidence sucked, (this is known as USCIS "denying the case on the merits) the Government has the burden to show the marriage was not entered into good faith, the Petition and its supporting evidence are not true AND the Petition was properly denied. In cases where there is a divorce and ROC applicant wants a waiver (no Joint Petition filed) applicant, rather than government, has the burden of proof. Do you disagree with this? 

If I may, please review the following language from Mendes and kindly advise what you think it means with respect to burden of proof once a case gets before an immigration Judge 

"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."
 

[Crazy Cat 41,845]

18 minutes ago, 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.  

Thanks for the kind words, but I am no expert.  I have just spent a lot of time learning from others here on VJ....

VJ is an extraordinary place for education and entertainment.....

 

EDIT:  I am honored that you mentioned me in the same sentence as @geowrian , who actually is an expert.

Edited July 26, 2018 by missileman

[Eric The Wait 40]

5 minutes ago, geowrian said:

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.

This is an excellent point.

Regardless of burden of proof the Petitioners need to gather up evidence and present to USCIS, respond appropriately to requests for evidence and show up at interviews.

And yes, only an actual immigration attorney who has been in Court and presented a position on these issues can resolve the question definitively. 

Thank you for responding on this thread and for such intellectually interesting inputs and practical observations. 

 

[Crazy Cat 41,845]

1 minute ago, Eric The Wait said:

Regardless of burden of proof the Petitioners need to gather up evidence and present to USCIS, respond appropriately to requests for evidence and show up at interviews.

Exactly!!!  I could not agree more.....

[EM_Vandaveer 2,408]

I understand your concerns but you are not the first couple not to co-mingle financial assets. Many had done so for different reasons. (Wealthy USC with prior divorces, they sign a pre-nup & keep money separate would be one example.)

Co-mingling is one part of the full picture. For another (important) part, I am assuming you can easily prove co-habitation for the full length of marriage. That, in itself, is a majorly important point. 

And although affidavits are not primary evidence, in your situation I'd send two or three.

Wills, power of attorney (for healthcare decisions) are also good pieces of evidence.

[Going through 5,671]

Seriously, if I had a question about understanding/interpreting a section of immigration law and case studies, @geowrian would be the first person I would ask.

 

 

(cheque's in the mail, right buddy??   )

 

 

[Amadia 711]

7 minutes ago, missileman said:

Thanks for the kind words, but I am no expert.  I have just spent a lot of time learning from others here on VJ....

VJ is an extraordinary place for education and entertainment.....

Agreed. I have done the same.

[Eric The Wait 40]

1 minute ago, EM_Vandaveer said:

I understand your concerns but you are not the first couple not to co-mingle financial assets. Many had done so for different reasons. (Wealthy USC with prior divorces, they sign a pre-nup & keep money separate would be one example.)

Co-mingling is one part of the full picture. For another (important) part, I am assuming you can easily prove co-habitation for the full length of marriage. That, in itself, is a majorly important point. 

And although affidavits are not primary evidence, in your situation I'd send two or three.

Wills, power of attorney (for healthcare decisions) are also good pieces of evidence.

Yes, we have lived together since my wife came on the K-1 visa on May 26, 2016. 

I'll get some affidavits. 

I will call lawyer today and make appointment for Wills and Health Care Proxy. We've been talking about doing that. We're in our 50's and neither have children, so we're the only heirs anyway...but it's still a good idea regardless of ROC evidence. 

Thanks so much for your input 

 

[EM_Vandaveer 2,408]

On 7/26/2018 at 1:53 PM, Eric The Wait said:

Yes, we have lived together since my wife came on the K-1 visa on May 26, 2016. 

I'll get some affidavits. 

I will call lawyer today and make appointment for Wills and Health Care Proxy. We've been talking about doing that. We're in our 50's and neither have children, so we're the only heirs anyway...but it's still a good idea regardless of ROC evidence. 

Thanks so much for your input 

 

You're welcome!

[xillini 71]

On 7/25/2018 at 9:08 PM, geowrian said:

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

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.

 

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.

 

 

I remember reading an law article that the burden of proof relies on DHS when it comes to IJ court hearing. USCIS, or DHS, in I 751 process, exercise good faith test, meaning that they must enter the marriage in a good faith.

However, when it comes to IJ's hearing, some US federal court district exercise "circumvent immigration laws" test, which has less strict interpretation of laws. 

 

Let's just assume an immigrant was present in U.S. as H1B, and was married to USC later. Because the immigrant had H1B, it would be much easier to prove that the immigrant did not enter the marriage to circumvent immigration laws being married to USC and subsequently applied to I 485 based on marriage, if the immigrant could prove that he could have applied to I-485 based on employment.

So this test, "circumvent immigration law" has more liberal interpretation of INA instead of "good faith marriage" test. 

If I am not mistaken, these federal court district include the 9th and 3rd court district to practice "circumvent immigration law", which mainly covers CA and NY, and all other court districts will use "good faith marriage" test. 

 

A good faith marriage could be more comprehensive because, let's just assume that an immigrant was not fully faithful to USC after green card, and therefore USC divorced it, and claimed that the marriage was not entered in a good faith

(well I guess it is kind of typical story).

 

USCIS's burden of proof to prove the marriage was not bona fide would have less threshold, if USCIS suggests material facts that the immigrant was continuously meeting with opposite sex friends, have numerous text/call/internet communications between him and another females, (or since same sex marriage is accepted, that could even include same sex) if the content is intimate, and somewhat private. Like any evidences that general USC couples would not do could be evidences against the immigrant. 

 

A good faith marriage is not clearly defined by courts, because it is not in nature that the judicial court defines what could be "good faith" marriage and what's not, because as soon as judicial court defines it, then many couples will claim legal child/spousal supports, citing that court's decision among all couples upon divorce. I have some USC couples friends, who did not do sex for more than couple of years, and they are still married for various reasons, but the court just can not define the good faith marriage by dictating that "a good faith marriage" include the couple having sex at least 1 time per week, or something like that.... Or, in order to be qualified to be a good faith marriage, the couple must live together in the same address....

 

I have USC couple (both USC), one living NYC, and another living in Midwest. Are they in sham marriage? I don't think so, but they entered marriage for benefits and their best interests. One working in NYC is an investor working in the wall street, whose partner was a prestigious physician in Chicago. In my opinion based on my observation on them, I think they just made their choices for happiness because, the investor did not lose more job opportunities in NYC, while the physician did not wanna leave Chi-town, where she finished the residency and has broader connection. I don't know about their love life, but they spend some time together whenever they meet once per month.

Their choice for happiness led them to fall in love with other added-attraction toward each other, even though they live apart, and to my eyes, they are bona-fide marriage couples (At least based on info I knew of).

 

However... to USCIS's eyes, this must not only be big red flag (just because they live apart), but also could be potential sham marriage that must be tested significantly in IJ's court hearing. (not to mention why first lady did not live with POTUS for a multiple months....) 

Because the modern society is no longer agricultural-manufacturing industry driven society as US used to be once, when the current immigration law was enacted, it simply can not follow the speed of modern society's occupational changes and so-on. (Plus, I would like to remind many of USCIS IO's are military background, whose ideas about marriage is really closed-minded compared to average Americans). 

 

If the court defines what can be qualified as a good faith marriage, then couples will cite this to claim better rewards upon divorce if they decide to dissolve the marriage, and therefore, the court can not do that. So the court leaves that in a gray area, where it is case-by-case with common sense, which creates all this fuss when it comes to immigration and marriage. So I would just point out that as long as you are married and in average you are normally married immigrant, it should be fine. 

 

Edited August 2, 2018 by xillini