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Marriage Fraud Conviction Causes BIA to Deny Request for Waiver

marriageThe Immigration and Nationality Act (INA), the nation’s primary source of immigration law, allows noncitizens who marry U.S. citizens to obtain lawful permanent residence without numerical limitations. In order to address concerns about marriages whose sole intent is to facilitate immigration benefits, the INA sets restrictions on people who seek lawful permanent residence after less than two years of marriage. A violation of these restrictions can result in a finding of deportability, but the INA allows waivers in some situations. The Board of Immigration Appeals (BIA) recently ruled on a waiver claim in a case involving marriage fraud. Matter of Tima, 26 I&N Dec. 839 (BIA 2016). The ruling offers an extensive summary of this area of immigration law but resulted in the denial of the respondent’s claims.

An individual who obtains lawful permanent resident (LPR) status through marriage to a U.S. citizen is granted “conditional permanent resident” status if, at the time they obtain such status, they have been married for less than two years. 8 U.S.C. § 1186a. Within two years of obtaining conditional status, they must apply to have the conditions removed. The purpose of this two-year conditional period is to give the government time to investigate whether the marriage was solely entered into for immigration purposes.

If the parties are no longer married after two years, that is not automatic evidence of marriage fraud, but it will likely bring additional scrutiny from investigators. If the government concludes that the marriage was a sham, or if the immigrant fails to apply by the two-year deadline, conditional permanent residence is automatically revoked. The immigrant may then be subject to deportation. 8 U.S.C. § 1227(a)(1)(D)(i).

False or fraudulent statements in connection with a marriage-based immigration petition may also be subject to federal prosecution for fraud. See 18 U.S.C. § 1001. Fraud is often considered a “crime of moral turpitude,” which is a ground for both inadmissibility and deportability. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i). Marriage fraud is also identified as a separate ground for deportability, with or without criminal prosecution. Id. at § 1227(a)(1)(G)(ii).

The INA allows waivers in removal proceedings under certain circumstances. A waiver of deportability may be available to a “spouse, parent, son, or daughter” of a U.S. citizen or LPR if the basis for deportation involves gaining admission to the U.S. by fraud or misrepresentation. Id. at §§ 1227(a)(1)(H), 1182(a)(6)(C)(i).

The respondent was convicted of federal fraud charges for making materially false statements about his marriage. The government sought to deport him for marriage fraud, conviction of a crime of moral turpitude, and termination of conditional permanent resident status. The court found that he was eligible for a waiver of deportability for marriage fraud. It also found, however, that the finding of deportability for a crime of moral turpitude could not be waived, even though both grounds of deportability arose from the same act.

Immigration attorney Samuel C. Berger represents immigrants, prospective immigrants, and their family members and employers in the Northern New Jersey and New York City areas. To schedule a confidential consultation with a member of our experienced and knowledgeable team, contact us today online, at (201) 587-1500, or at (212) 380-8117.

More Blog Posts:

Several Recent Events Relating to Immigrant Visas Could Affect New Jersey Immigrants and Employers, New York & New Jersey Immigration Lawyer Blog, November 12, 2015

Cases in New York and New Jersey Allege Immigration Fraud Involving “Sham Marriages”, New York & New Jersey Immigration Lawyer Blog, May 27, 2015

International Adoption and Immigration Remains Popular, but May Hide the Risk of Abuse and Fraud, New York & New Jersey Immigration Lawyer Blog, May 11, 2012

Photo credit: waldryano [Public domain], via Pixabay.