I751 Denial

[Crazy Cat 41,888]

9 minutes ago, African Zealot said:

Although the answer given is correct, it can be misleading. The fact that the new marriage and petition proceeds smoothly doesn’t mean the deficiencies in the previous denied petition is cured. For an i751 the most common reason for a denial and NTA is they believe the marriage is fraudulent.
 

Hence regardless of how the new once proceeds, if you’re not able to overcome the charge of fraud in the prior one, you will still be ordered removed when it concludes in immigration court.

 

Basically you can’t circumvent or game the system with a new petition because hypothetically one could use an unending sequence of petitions to avoid the consequences of a prior fraudulent petition.

 

Get a good immigration attorney. I751’s are typically not trivially denied, nor are people out in proceedings casually.

Well said.  In addition, a "new marriage" could be seen as a desperate attempt to remain in the US.  

[mindthegap 2,590]

1 hour ago, African Zealot said:

Although the answer given is correct, it can be misleading. The fact that the new marriage and petition proceeds smoothly doesn’t mean the deficiencies in the previous denied petition is cured. For an i751 the most common reason for a denial and NTA is they believe the marriage is fraudulent.
 

Hence regardless of how the new once proceeds, if you’re not able to overcome the charge of fraud in the prior one, you will still be ordered removed when it concludes in immigration court.

 

Basically you can’t circumvent or game the system with a new petition because hypothetically one could use an unending sequence of petitions to avoid the consequences of a prior fraudulent petition.

 

This isn’t correct. Extra scrutiny and weight of proof of a legit marriage will be clearly be required when adjusting with the current marriage, but the prior denied petition cannot magically override it in court nor do you have to overcome a prior denial if adjusting with a new marriage - it’s an entirely separate petition and process. The old one is dead, as is the status from it (you are just electing to do that at the point of a denial letter rather than actually in court).
And yes, the law as currently written does in many ways allow for a repeated filing of petitions. 
 

Read the legalese and judgement (note that the dissenting member at the end makes the points as you above).

 

1 hour ago, African Zealot said:

I751’s are typically not trivially denied, nor are people out in proceedings casually.

Respectfully, my own experience directly contrasts with this assertion. 

Edited August 7, 2021 by mindthegap

[African Zealot 1,455]

15 minutes ago, mindthegap said:

This isn’t correct. Extra scrutiny and weight of proof of a legit marriage will be clearly be required when adjusting with the current marriage, but the prior denied petition cannot magically override it in court nor do you have to overcome a prior denial if adjusting with a new marriage - it’s an entirely separate petition and process. 

Establishment of a prior fraudulent marriage bars subsequent adjustment of status through another marriage. Section 204(c) of the Immigration and Nationality Act bars a petition from being approved where the petition beneficiary previously participated in a fraudulent marriage.
 

Indeed it was emphasized in a very recent case.

 

https://www.justice.gov/eoir/page/file/1332671/download

 

Unless you’re talking of something that I am missing else because this is well established.

 

[mindthegap 2,590]

1 hour ago, African Zealot said:

Establishment of a prior fraudulent marriage bars subsequent adjustment of status through another marriage. Section 204(c) of the Immigration and Nationality Act bars a petition from being approved where the petition beneficiary previously participated in a fraudulent marriage.
 

Indeed it was emphasized in a very recent case.

 

https://www.justice.gov/eoir/page/file/1332671/download

 

Unless you’re talking of something that I am missing else because this is well established.

 

That law is specifically for cases where there is substantial and probative evidence of fraud or conspiracy to commit fraud. 
 

Indeed, the case you cite specifically supports this, in the following: 

“The plain language of the statute and the regulation does not foreclose the application of the section 204(c) bar in cases where the prior visa petition filed on the beneficiary’s behalf was denied based on failure to establish a bona fide marital relationship, but the marriage had not been determined to be fraudulent”

However, it then continues and then details the very clear & documented evidence of fraud contained within that first marriage, hence the adjustment from the second marriage is rightly denied under that law. 

 

 

The existence of a denial of an i-751 by itself is not indicative of the existence of fraud or the intention to commit fraud, much the same as a denial for failure to file is not evidence of fraud, despite having the same end result.

 

 

(That’s also a useful case document - there are some bits in there that are useful to me, thank you for posting that)
 

 

[African Zealot 1,455]

10 minutes ago, mindthegap said:

That law is specifically for cases where there is substantial and probative evidence of fraud or conspiracy to commit fraud. 
 

Indeed, the case you cite specifically supports this, in the following: 

“The plain language of the statute and the regulation does not foreclose the application of the section 204(c) bar in cases where the prior visa petition filed on the beneficiary’s behalf was denied based on failure to establish a bona fide marital relationship, but the marriage had not been determined to be fraudulent”

 

 

You’re not saying anything different from what I am saying. The definition of the word I deliberately used, establishment  indicates that the finding was not mere suspicion, but supported by the level of evidence which meets the bar of substantial and probative.