Quick question, Is AM1996, the lawyer, Canadian or American??

Why have we gone off topic?? The fact is this person is trying to commit immigration fraud. Yeah, Ok there are numerous 'technicalities' but everyone who is going through this legitimately, has a little common sense and has waited x months for a visa is not going to be happy to hear how someone is trying to scam the government to stay in the US, after a divorce..

It's like I have seen people say, "yaaaayyyyy AOS is over, now I can apply for citizenship!!!". So I think to myself, "Hmmm. I bet you were in this for love, when your already thinking about citizenship combined with the fact the your migrated from a underdeveloped country.."







Disclaimer: Before anybody barks, I KNOW the above does not apply to everybody...

Oh Boy by page three I had a big headache what with all the flipping legal jargon. What rebbecca said was blunt and too the point but was it wrong, noooo it was not, this board as many have said is an open discussion board and i've come to realize that whatever people say it is just their own opinion and we are here on this planet to choose weather we take those opinions or not. Some people are well aware of the dangers of taking just one person's word as truth and so chooses to take a few cases into consideration before taking action.

As for the person lying to USCIS when he could of told them he was separated then Yes that was DUMB.....but it is past tense he has already done it and nobody can take his actions back. He has to talk to an immigration lawyer now as his actions have caused a big ole red flag in his file.

Wow, I come back from a long weekend to find that this thread is still alive and well. I guess I am not the only one who finds it at least mildly entertaining.

At the risk of once again being accused of sounding condescending, I want to take one last stab at explaining my point that without more information, we cannot form a responsible opinion that the OP's actions were illegal, imprudent or "dumb." For instance, as I've previously posted, if you are ever audited by the IRS, you are generally well advised to only respond to the questions asked without volunteering ANYTHING. If you give them all the paperwork you have for everything out there, then you are asking for trouble. If you are ever pulled over and asked whether you know why the police officer pulled you over, the right answer in almost every situation is NO. If you tell him that it is because you just ran a red light but he pulled you over for speeding, you will get two tickets instead of one.

In other words, without any legal jargon, if you do not mention something to the authorities (regardless of whether we are talking about the police, IRS, CBP, USCIS, etc...), you can only get in trouble for it if the applicable law requires you to disclose such information to them and/or allows them to hold such nondisclosure against you. This is an extremely important point and is anything but splitting hairs -- if the law does not specifically require you to disclose information and does not permit the authorities to hold such nondisclosure against you, as a legal, practical and every other matter out there, you cannot get in trouble if you choose not to disclose something.

On the other hand, if you are not required to disclose potentially damaging information to the authorities and the authorities are not allowed to hold such nondisclosure against you, why in the world would you still go ahead and make the disclosure?

Based on the above, the only way to tell whether the OP did something "dumb" or illegal is to know whether the law requires him to make the disclosure about his impending divorce and/or allows the USCIS to do anything about the nondisclosure. Since we do not know what the law requires him to do in his situation, all the opinions (both for and against the disclosure) won't mean much until and unless he sees and immigration lawyer and finds out what the law required him to do.

This strict legal/illegal point of view fails to account for an important difference that needs to be kept in mind. An immigration benefit is not a right that must be granted. In a criminal matter, the burden of proof is on the government to show a violation. For immigration, the burden of proof is on the immigrant to show qualification. In the absence of any evidence, the criminal goes free and the immigrant is denied.

As a general matter, I agree with you wholeheartedly. The fact, however, that the alien has the burden of proof when it comes to immigration benefits does not change the analysis above in the least. If the applicable law does not require the alien to disclose the fact that he is going through a divorce and does not permit the government to use such nondisclosure against him, then the immigration benefit cannot be denied simply because USCIS "does not like" the nondisclosure.

Let me ask you this.

If the RESULT of an officers findings can be a denial based upon termination of the marriage (defined as diaddie said several posts back as separation) what purpose is served in 'non-disclosure' of such facts other than to temporarily delay the denial, or to somehow circumvent it?

I concur with John. The main difference in the immigration process vs. civil or criminal law is a benefit versus a constitutional right.

Do you have something that says a nondisclosure cannot be used against him? I would think it would at least cause more scrutiny to be applied to other qualifying/disqualifying areas.

It's just not that black and white. Can you say that there is noone in jail that did no wrong, committed no offense, told no lie, and yet was not believed because of some suspicious action or ommission of fact?

I'm sorry to interject in all this fun, but I am confused. Was the OP in the process of a divorce at the time of the interview or not? I bolded the part of the original post which are causing me to ask. It reads as if the marriage broke down AFTER the AOS interview - in which case, what are we arguing about?

Read the OP's post again. After his AOS interview he filed for divorce. Then he went into a USCIS office because of "medical emergency" (AP?) and he got taken into a room and quizzed by the USCIS officers.

IMHO this quizzing wouldn't have happened unless USCIS had got wind of the fact he was divorcing his wife. So at that point, him "holding back" the fact he was getting divorced by stating "yes, we are married", is going to prejudice USCIS against him in processing his Green Card, because the USCIS officier is basically going to think: "This guy is holding back information, sounds like he's trying to scam us".

Rebecca, this is an aside, but I appreciate both the substance of the question as well as the tone. To the extent I haven't done it before, I'll do my best to reciprocate.

If the law says that USCIS adjudicators may only deny the OP's petition if he is legally divorced, then the fact that a divorce decree has been merely FILED would have no effect on him. Once again, we do not know what the requirements of the applicable laws are as they relate to this specific situation, which is the reason that we cannot answer the OP's question one way or the other, or tell him that his actions were "intelligent" or "dumb."

In order for the OP to get in trouble, his nondisclosure must be somehow penalized by the applicable law. If he was not required to make the disclosure and the government is not allowed to hold it against him, he CANNOT get in trouble. This is the way ALL laws work, both civil and criminal, immigration statutes and traffic ordinances, etc...

Thanks dr_lha.

You're making the same basic mistake over and over. A person isn't "penalized", they're simply not given a green card. This isn't considered a punishment, its just "not giving a benefit".

Experience of many people on shows that USCIS can deny GC for any reason they damn well please. If they think the guy is going to get divorced as soon as he gets his green card, and they suspect this is because the marriage is fake, they will deny his application. The only recourse he has against this is to file an appeal in which the burden of evidence is on him, not USCIS, to prove his case.

For the purposes of this analysis, this "benefit" vs. "right" distinction is irrelevant. It doesn't matter whether he does not receive a benefit or is denied a right if the denial is based on something that the government is not allowed to take into account.

The permanent residence can be taken away after approval if it is discovered that the marriage was for immigration benefit only. In this case, it appears that additional information was produced by the USCIS that indicated that such a fraud has been perpetrated. For him to overcome this suspicion, he would have to present some evidence that the marriage was bonafide even though he filed for divorce. If he stands by the "correctness" of his declaration that he was married -- implying an ongoing relationship, he has cut his opportunity short of supplying evidence that might be beneficial to him. With the suspicion of fraud and no evidence by the OP to negate it, the benefit will likely be denied/rescinded.

You're living in la-la land if you believe that's how USCIS works. If you really are a lawyer you will have heard of something called reasonable doubt. If USCIS has any reasonable doubt that you are defrauding them, they will deny the Green Card benefit and do not have to provide any evidence or burden of proof as to why they denied his application.

What about this can you not understand? They are obviously suspicious of the OP, as apparent in the grilling. It matters not whether he what he said was a lie or the truth. If they don't belief his marriage is real, he won't get a green card. Its up to him to prove the USCIS officier wrong in his suspicions. If he doesn't he'll get denied, simple as that.

Only after that can you start talking about law, in the appeals process.

They can't take into account anything he didn't give them. In this case they can't take into account any evidence that the marriage was bonafide despite a filing of divorce because he offered none.

They can take into account a lack of evidence to dispute some claim that the marriage may have been for immigration benefit. They don't have to hold it against him that he said he was married. They can hold it against him that he did not show evidence of a bonafide marriage.

At the risk of once again sounding condescending, there are specific procedures, statutes and regulations that are in place that specifically govern the type of burden that each party has, the type and the amount of evidence that is required or is sufficient to overcome the burden, etc... The term "reasonable doubt" (just like "totality of the circumstances," which I addressed earlier) has a specific legal meaning and applicability. The reason I am mentioning all of this is because it is entirely possible (we have no way of knowing either way, which is the point that I've been trying to make) that the statute(s) that govern the issue do not allow the OP's nondisclosure to create a "reasonable doubt" or to do anything else to harm the OP and/or to get his benefits denied.

For instance, if the laws say that USCIS is not allowed to deny your AOS petition just because you have a couple of minor speeding tickets, you cannot be legally denied your immigration benefit regardless of the way the USCIS adjudicator feels about speeders or the dangers that they cause.

Once again, my point is not that the OP's actions were intelligent or prudent. My point is that we have NO IDEA, all the speculation on both sides notwithstanding. We can continue making very reasonable, logical and compelling arguments on both sides until cows come home, but none of these opinions or arguments will amount to much until and unless the OP finds out exactly what the law requires of him under the circumstances. To get that knowledge, he will most likely have to go see an immigration lawyer.

OMG are you still giving your interpretation of USCIS law.... wow......

Why dont you go and train to be a immigration lawyer.... then once you done that.... do about 2 years work with uscis and get some real experence... then come back and spout the laws at us all...

It is becoming very boring

Kezzie

True, but a USCIS officer can deny a case if they feel the person is committing fraud in representing a fake marriage for immigration purposes as a real one.

Note the use of the word "feel" as opposed to "prove".

As john_and_marlene pointed out above, the OP does not face loss of immigration benefit because he didn't tell USCIS he's getting divorced, but rather because USCIS suspect (or maybe even know) that he's getting divorced. Getting divorced shortly after getting a Green Card is a huge red flag. The OP has to prove beyond doubt that he is deserving of a Green Card.

This is not about a couple of traffic tickets. The standard of proof here is “preponderance of the evidence” unless there has been a previous finding of fraud.

When derogatory evidence has be found, opportunity is given to rebut the evidence. It could be argued that they gave the OP that opportunity when they asked him about his marriage.

http://www.uscis.gov/lpbin/lpext.dll/inser...pter-32-11-46-1

Rebutting Derogatory Evidence. Derogatory information, like supporting documentation, need not comply with the strict rules of evidence. However, the adjudicating officer must keep in mind that the applicant or petitioner must be afforded an opportunity to inspect and rebut adverse information, except certain classified materials, which should be discussed in general terms without jeopardizing the security of the information or the source. [See 8 CFR 103.2( B )(16) and Matter of Tahsir, 16 I&N Dec. 56 (BIA 1976). See also Appendix 10-5 of this field manual.]

I forgot to add this concerning the difference between this and a couple of traffic tickets.

http://www.gao.gov/archive/1997/og97016.pd...=%22B-275860%22

Some provisions of immigration law are designed to prevent misuse of marital status. The law calls for termination of the permanent resident status of an alien granted on the basis of marriage, if it is dertermined that the marriage was for the purpose of procuring the alien's entry to the United States, or if the marriage is annulled or terminated (other than through the death of a spouse) within two years.

You know all this legal arguments is making this thread very interesting... its almost as good as Judge Judy on TV..... you never know you could be the next big daytime legal show.....

Kezzie

I understand the angle that you are coming from, but I think when you immerse yourself in these matters, you will see why problems arise and why people are disagreeing so vehemently with you.

The matter of fact is that USCIS often acts outside the scope of law and often misapplies or quite simply IGNORES it --- this give rise to quite a volume of litigation which, usually is sorted out at the appellate level. I think what some members are expressing is that your ideas may work in front of the immigration judge/appellate court judge, but not in front of the USCIS officer.

It is not supposed to be this way --- but that is just the nature of the beast.

It all comes down to the Bill Clinton and Monica Lewinsky case. Bill answered the question Truthfuly, did he have sexual intercourse with Monica? he answer no

It was up to the Prosecutor to ask the right question
Like what kind of sexual relationship you had with with her
what kind of sexual act did you perform

He didn't lie, so therefore didn't perjured himself, the same way the OP while not voluntereeing additional information didn't like because technically she/she is still married

If anything happen to the spouse, he/she will be the one having all the legal rights.

I don't get this. And maybe it's partly my fault because of the way I worded the question.

I stated 'termination of marriage' which in fact was WAY WRONG on my part. It's been well-established in this thread (and I do know better but misspoke) that a marriage doesn't have to be terminated in order for the benefit of a greencard to be denied. All the adjudicator has to determine is that the relationship is fraudulent, or a 'matter of convenience' for immigration purposes.

Sooooooooo.....I don't how the non-disclosure is anything short of causing trouble. If you want to get down to brass tacks it's almost moot. All the adjudicator need determine is that the marriage was fraudulent and - boom - no greencard and possibly deportation. Indeed, as John said, the non-disclosure was a huge mistake on the OP's fault as that was his opportunity to refute any claim of fraud.

I don't know much about this debate to have an opinion but the above post is just plain insane. Dr_lha, why do you continue to offend and alienate others with your personal attacks, especially when the post above makes it so clear that you have no idea what you are talking about.

All this "feel" as opposed to "prove" stuff is just plain silly. Please take a look at the post underneath yours to find the proper standard of proof ("preponderance of the evidence," which is quite specific).

What in the world does it mean that "the OP has to prove beyond doubt that he is deserving of a Green Card" -- beyond what doubt? There is no such standard or proof!

I am no lawyer (I do have a JD/MBA though) but I just coudn't stand to read all that stuff.

attyinsandiego, may I kiss you! LOL

This is the point that we have been trying to get am1996 to see. Perhaps we went about it the wrong way.

I think it's VERY much on point that a petition by a citizen of another country asking the US government for the right to live here is just that - a REQUEST - and therefore a benefit, a priviledge. Not a right governed by the Constitution.

One has to wrap one's brain around the concept that while there is indeed LAW governing these requests, there is no fundamental protection of the petitioner that would be afforded a citizen of our country in our civil judicial system. Indeed it is up to the petitioner to PROVE that they are worthy of admission to this country. There is no Bill of Rights underneath his request that protects him.

My own boss, an attorney of course, won't touch this immigration stuff with a 10-foot pole. He's got a law-school buddy in Washington who works for the State Department and he's had enough conversations with him to have respect for the difference in not only the practice of immigration law, but respect for the fundamental difference in the foundation of it.

Personal attacks? WTF are you talking about? I don't think I've alienated anyone, unless they can't stand healthy debate.

Also I have a very clear idea what I'm talking about, not because I'm a lawyer, but because I've been dealing, successfully, with INS/BCIS/USCIS for almost 8 years. I also have had many friends who have gone through this process, some who have been denied (for no good reason sometimes) and some who have been denied for good reasons.

Yes, but in reality it comes down to how a USCIS officer applies the standards. Those statutes are only useful after you have been denied and you are trying to prove the officier did the wrong thing in court. While going through the initial process often you are as much liable to the whim of the particular officer as you are any strict rules. Consider the cases of people who have been getting RFE's for I-864 filed with the "new rules", often the way USCIS officiers decide a case is inconsistant.

I meant not in a legal sense of proof, but prove beyond doubt in the mind of the adjudicating officier that they are deserving of a Green Card. If the USCIS officer thinks you're trying to defraud him, you'll get denied.

Why is everybody so sensitive on this one? It is a pretty straight forward question that seems to have incited some kind of VJ riot.
I read the whole thread and I really can't find the " bad guy ". You all seem more or less intelligent and articulate. I really don't see why this has turned into a cat fight. The poor OP walked away long ago!

Because everyone wants to be right, and because, as my 83 year old grandfather says, "Opinions are like assholes..."

In all seriousness, I think everyone honestly wants to help the OP -- but there are so many divergent opinions that conflict is bound to arise, and when people aren't people, just faceless entities on a rather congested and convoluted series of tubes, it's easier to go for the throat when one feels offended.

Just my $.25 ($.02 adjusted for inflation).

M.

This sort of thing always happens when someone comes in, says they're a lawyer in an attempt to validate their supposed superior knowledge, despite the fact that they aren't an immigration lawyer, and starts telling everyone they're wrong. If you want to understand why there is so much "bad blood" look no further than that. Trust me I've seen this happen on a few other forums before!

The real point here is this thread should have been locked 6 pages ago. I guess the moderator is too busy doing the following:

I'm shocked this got to 9 pages with so few popcorn icons.

*shrugs*

I was mad at first. I'll admit it. But I'm not here to have a cat fight. I'm here to learn. Same as everyday.

I don't want to help this OP. His filing for divorce immediately after the AOS interview is suspect to me. I simply wanted to explain to him why I think the USCIS will reverse their approval and deny him the GC.

I don't see why this thread should be locked either. I think the debate here has provided some useful insight.

Why do you continue to insult people and grossly mischaracterize their statements? In fact, I've now read a number of threads where you've done just that. Noone in this thread announced that others should just trust him because he is a lawyer. In fact, the opposite is true. He has been posting ample support for his views and explanations and telling people NOT to rely on the fact that he is a lawyer in forming their own conclusions.

At the very least have the guts to accept that you are one of the primary instigators of this debate and one of the reasons this thread is as long as it is and as off-topic as it is.

If you want this thread to stay on topic, stop taking it off topic. You are engaging in the very thing you are opposing.

Right. I agree. Why lock the thread? This is an interesting dilemma, that we all agree can’t be determined here and should be posed before an immigration attorney, nonetheless, the discourse is helpful for all in learning that sometimes cases that may appear simple, might involve more complexities than we imagine.

The more reading I have done I stumbled upon a series of cases that had underpinnings related to the viability of marriage which had suprising results (at least they were to me), for example:
Matter of Lenning, Interim Decision #2817
Matter of Lew, 11 I & N. Dec. 148 (D.D.1965),
Matter of Sosa, 15 I & N. Dec. 572 (BIA 1976)
Dabaghian v. Civiletti, 607 F.2d 868 (9 Cir.1979)
Matter of Kondo, Interim Decision 2781 (BIA 1980)
Chan v. Bell, 464 F.Supp. 125 (D.D.C.1978)
Matter of McKee, Interim Decision 2782 (BIA 1980), and
Bark v. INS, 511 F.2d 1200 (9 Cir.1975).

Of course USCIS often misapplies or ignores the law. All government agencies do. This does not mean, however, that people should stop following the law or the instructions because "anything can happen." The simple fact is that a petitioner stands the best chance of getting his/her application approved if the law and the rules are on his side. This is the case not because he's then likely to prevail on an appeal but because following the rules and the regulations makes it that much more likely that the application will be approved from the outset. Do we really need to argue about this point?

Thank you very much for finding these! The reasoning and the holdings are QUITE interesting, aren't they?!

For those who do not feel like reading these cases, please take a look at some of the representative holdings below (for the lawyers in the thread, these are all Keycite notes; also for the lawyers in the thread, I did not keycite/shepardize any of these cases but none of them have been overruled according to the keycite flags):

Chan v. Bell, 464 F.Supp. 125 (1978):
"Immigration and Naturalization Service erroneously denied to husband, an alien, classification as an "immediate relative" of his wife, an American citizen, with consequence that he would not receive an immigration visa, where, at time petition was filed, husband was lawful spouse of wife, although parties lived apart, no divorce or legal separation had taken place and no proceedings for divorce or legal separation had been instituted, with result that marriage was valid when petition was filed, and there was no contention that marriage was a sham at its inception, or that it was entered into for purpose of evading immigration laws. Immigration and Nationality Act, §§ 201( B ), 204( B ), 8 U.S.C.A. §§ 1151( B ), 1154( B )."

"Applicable statute expressly directs Attorney General to grant immediate relative status to alien spouse of an American citizen, without any reference whatever to marriage viability or solidity; indeed, another statute, the definitional section, excludes from definition of "spouse" only those situations where contracting parties to marriage ceremony are not physically present in presence of each other, and even that condition is waived when marriage shall have been consummated; although another statute places burden of proof on a petitioner to establish his status, once he does so, benefits are awarded by law, and Attorney General lacks power either to deny them or to exercise discretion with respect thereto. Immigration and Nationality Act, §§ 101(a)(35), 204( B ), 291, 8 U.S.C.A. §§ 1101(a)(35), 1154( B ), 1361."

"No rule or regulation issued by Attorney General or Immigration and Naturalization Service requires existence of a "viable" marriage as a precondition to grant of immediate relative status. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B )."

"In absence of clear congressional direction, e. g., statutory language that only viable marriages were to be regarded as valid for purposes of immigration laws, together with a precise definition of viability, Immigration and Naturalization Service's viability standard was untenable; Service could not, consistent with due process, be regarded as vested with both authority to establish vague and elusive concept of marriage viability and enormous power to regulate and enforce that concept in actual practice. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 14."

"Whatever may be power of Congress, notwithstanding Tenth Amendment, to establish for purposes of immigration laws a species of "spouse" in terms of viability of his or her marriage to other spouse, as distinguished from official, state-sanctioned marriage status, Immigration and Naturalization Service had no such power. Immigration and Nationality Act, § 201( B ), 8 U.S.C.A. § 1151( B ); U.S.C.A.Const. Amend. 10."

"An agency's interpretation cannot vary plain words of a statute and a court need not defer to an erroneous administrative construction."

One good rebuttal deserves another of course...

USA v. Ul Islam

http://www.kscourts.org/CA10/cases/2005/08/04-3320.htm

"Defendant also argues the district court's jury instruction on "intent" under § 1325© constituted plain error. The jury instruction provided in relevant part:

Defendant Zaheer Ul Islam . . . [is] charged with violating [8 U.S.C. § 1325©], which makes it a crime to knowingly enter into a marriage for the purpose of evading any provision of the immigration laws. . . . For you to find a defendant guilty of this crime, you must be convinced that the government has proved each of the following three (3) elements beyond a reasonable doubt:

First: That the defendant knowingly entered into a marriage; and

Second: That the marriage was entered into for the purpose of evading any provision of the immigration laws; and

Third: That the defendant knew or had reason to know of the immigration laws.

The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

Viability of the marriage is not the questions in this thread, however. The question here is whether the marriage was for the purpose of immigration benefit and not bonafide. Viability of a marriage and bonafide marriage are two separate and distinct issues.

It could be found that the marriage is not bonafide even if there was no divorce filed and the couple were still living together.

The quick filing of divorce immediately after the AOS interview adds to the arguement that the marriage was for immigration purposes only.

Please take a look at the other cases that have been cited above. They address and discuss the point you are making. I can't keycite I&N and Interim decisions, so I can't post keycite notes for them.


Rebecca, the quote above deals with specific jury instructions and the amount of "intent" that is necessary to convict a defendant with regard to the specific offense charged.

The standard of evidence for adjudicating the benefit differs from the standard of evidence in criminal trial. For the adjudication the standard is “preponderance of the evidence”. The stricter "clear and convincing" standard is not required to deny the benefit.

I realize that. Does the concept of 'reasonable man' have no bearing here?




Um, John - sorry you lost me. Can you say that to me again?

That's correct. The concept of "reasonableness" has no bearing on jury instructions or the level of intent and the burden of proof required to convict a person of a criminal offense. The latter (jury instructions and the level of intent and the burden of proof required in criminal cases) has no bearing on the procedures and rules that USCIS is required to follow when adjudicating civil matters.

Quick question, are you just out of college?

Quick question, why do you post when you do not seem to have even the slightest idea about any of the issues being discussed? Have you read any of the cases posted above?

I was trying to keep the perspective on-track with the standard of evidence required to make an administrative ruling vs. a criminal conviction. The proof required for a jury to convict is much stricter and demanding than the standard of evidence in adjudicating an immigration benefit.

Ok John. I think but am not sure that you and I are on the same page.

I thought the salient point in that ruling was the last sentence...."The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

As a layperson (which I am) to me this sort of gets to the heart of the OP's initial query.

And just for my understanding - why wouldn't jury instructions be a good place to look for an understanding of the law? I thought that's what jury instructions were - spelling out to laypeople what information they must look at and what reasoning they must use in order to come to a lawful conclusion. Not what they personally think is right or wrong, but what the law says.

LOL....I really hope I haven't spent the last 15 years of my life in this law office with my head up my proverbial rear.....

Rebecca, what needs to be proven, by whom and according to what burden or proof is totally different depending on a criminal vs. a civil case. Even with civil cases, the above requirements differ based on the specific statutory authority that governs the issue. You can't use a ruling that discusses the requirements and the elements of proof of one statute (with its own specific requirements, burdens of proof, etc...) and apply those requirements to a completely different statute.