Another Denial

[Sweetdreaming 397]

  On 1/9/2024 at 11:14 PM, Family said:

Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Secretary of Homeland Security to establish, by a preponderance of the evidence, that the facts and information described in subsection (d)(1) and alleged in the petition are not true with respect to the qualifying marriage.

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Best wishes to OP!

On a side note, does the above mean any appeal of denial of a 751 to immigration court shifts the burden of proof firmly onto the states side, probably why so few 751 get denied?

[mindthegap 2,611]

  On 2/2/2024 at 3:32 PM, Sweetdreaming said:

 

Best wishes to OP!

On a side note, does the above mean any appeal of denial of a 751 to immigration court shifts the burden of proof firmly onto the states side, probably why so few 751 get denied?

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Yep, at a far higher standard than beyond reasonable doubt.

 

8 USC 1229a: Removal proceedings

 

(3) Burden on service in cases of deportable aliens

(A) In general

In the proceeding the Service has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.

 

and (Matter of P. Singh, 27 I&N Dec. 598, 607 (BIA 2019))

““[T]he degree of proof required for a finding of marriage fraud sufficient to support the denial of a visa petition under section 204(c) of the Act [is] higher than a preponderance of the evidence and closer to clear and convincing evidence.” .”

 

““The application of the ‘substantial and probative evidence’ standard requires the examination of all of the relevant evidence and a determination as to whether such evidence, when viewed in its totality, establishes, with sufficient probability, that the marriage is fraudulent.”

 

 

[Sweetdreaming 397]

Wow, yes that sounds an insanely high standard that only the most blatant fraud cases would achieve, really goes to show again how pointless the removal of conditions stage is.

[GeneO 10]

  On 2/2/2024 at 4:09 PM, Sweetdreaming said:

Wow, yes that sounds an insanely high standard that only the most blatant fraud cases would achieve, really goes to show again how pointless the removal of conditions stage is.

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True. I see the denial/refusal rate is around 4% or a little under - and that I assume are all cases from ones with incorrect payments/forms all the way through to the likely tiny number that are actually referred to the court. So 96% of cases sail through. You are correct, it is an utterly out of date and pointless stage in the process. The amount of times we are expected to prove and reprove ourselves is a joke. If they officially accept your marriage as legitimate at the I-130/485 stage that should be absolutely sufficient til one applies for citizenship. 

 

One can only assume all these different forms and stages are purely for funding purposes. The more steps they can put in the more money the agency makes, so I guess it will probably never really change. 

Edited February 3, 2024 by GeneO

[Family 4,262]

Any action?