Another Denial

[TBoneTX 43,160]

1 hour ago, Family said:

Consult attorneys w removal defense expertise ( A MUST)

Great recommendation.  I'm pretty positive that Sandra G. has helped VAWA applicants avoid removal.  Sure hope that she's receptive.

[Family 3,515]

8 minutes ago, TBoneTX said:

Great recommendation.  I'm pretty positive that Sandra G. has helped VAWA applicants avoid removal.  Sure hope that she's receptive.

I am sure she will give great input , as always. She did not chime in when Verrou/Misscloud was looking for removal attorneys in that area …so I guessed , it was not her cup of tea.
But I was under the impression she was not in private practice , rather worked for some NGO . 

Edited January 9 by Family
Am blind as a bat

[mindthegap 2,537]

45 minutes ago, Family said:

I will repeat this point , in case I missed something first time around:

DO NOT refile w USCIS.

 

t Ir may take a while to get your merits hearing ( trial date ) but if you choose , life can go on as you see fit . 

 

Understood. As long as I continue to be here legally, work (both of which I know I can) and to leave and return as I see fit, then that is fine.

Not being able to leave and return would be a deal breaker, for various reasons, including health, and elderly family. 

 

I am still considering my options and waiting to see if Sandra replies to me. 

 

I also note that the snaky *person* who wrote this decision did it on the very last working day before xmas. Classy, eh.

Edited January 9 by mindthegap

[carmel34 3,531]

13 hours ago, mindthegap said:

Understood. As long as I continue to be here legally, work (both of which I know I can) and to leave and return as I see fit, then that is fine.

Not being able to leave and return would be a deal breaker, for various reasons, including health, and elderly family. 

 

I am still considering my options and waiting to see if Sandra replies to me. 

 

I also note that the snaky *person* who wrote this decision did it on the very last working day before xmas. Classy, eh.

I really hope that you will fight this and win.  Of all the many cases we see here on VJ, yours is one that appears most likely to succeed in the end.  Please do periodic updates on VJ so that we can cheer you on and provide the emotional support that you will need to get through this.  You have many fans and admirers, which is very evident from the responses to this most recent I-751 denial.  Your British courage and determination should serve you well.  To quote Churchill:

 

"You ask, what is our aim? I can answer in one word: It is victory, victory at all costs, victory in spite of all terror, victory, however long and hard the road may be; for without victory, there is no survival (May 13, 1940, House of Commons)."  "We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight on the beaches, we shall fight on the landing grounds, we shall never surrender (June 4, 1940, House of Commons)."

[Family 3,515]

2 hours ago, killadocg23 said:

Hi,

 

I saw you said I can put any number for the online filing for citizenship. Have you done this before, I just want to make sure I am not going ot get in trouble for doing this on my form.

 

6 hours ago, carmel34 said:

I really hope that you will fight this and win.  Of all the many cases we see here on VJ, yours is one that appears most likely to succeed in the end.  Please do periodic updates on VJ so that we can cheer you on and provide the emotional support that you will need to get through this.  You have many fans and admirers, which is very evident from the responses to this most recent I-751 denial.  Your British courage and determination should serve you well.  To quote Churchill:

 

"You ask, what is our aim? I can answer in one word: It is victory, victory at all costs, victory in spite of all terror, victory, however long and hard the road may be; for without victory, there is no survival (May 13, 1940, House of Commons)."  "We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight on the beaches, we shall fight on the landing grounds, we shall never surrender (June 4, 1940, House of Commons)."

Well said.

 

if I may add this battle hymn..hoping you tap into your inner Genghis Khan

 

For the words 

 

For the visual

 

 

Also remember, giving up means a permanent black mark of fraud on your record and ban from US as visitor or resident .

 

Apologies if this is a duplicate post..

[mindthegap 2,537]

1 hour ago, Family said:

Also remember, giving up means a permanent black mark of fraud on your record and ban from US as visitor or resident .

 

Yep.... that is a HUGE reason for not giving up. Huge. HUGE. BIGLY.

 

Hypothetical question for you.

If someone in this situation was to be married to a US citizen (not the one that caused such a scenario, obviously), would they have to still overcome this to adjust via that? 

I know the procedure was changed and changed in 2019, for example, ref: matter of stockwell (and we had actually both commented on that before on here, such as my post HERE , containing lots of links, and you also commented a fair amount on that thread...which is now spookily like the situation I now find myself in)... allowing one to adjust after receiving a denial but before a final order of removal...instead of having to wait for the final order. 

 

In my situation, my denials all cite INA 216(c)(3) only. The mentions of fraud are only in the text, and of course no NTAs issued for any denial to date. 

Edited January 9 by mindthegap

[Boiler 43,546]

They will undoubtedly review the prior case bit just a refused I 751 with no marriage fraud finding should be OK

[Family 3,515]

39 minutes ago, mindthegap said:

 

Yep.... that is a HUGE reason for not giving up. Huge. HUGE. BIGLY.

 

Hypothetical question for you.

If someone in this situation was to be married to a US citizen (not the one that caused such a scenario, obviously), would they have to still overcome this to adjust via that? 

I know the procedure was changed and changed in 2019, for example, ref: matter of stockwell (and we had actually both commented on that before on here, such as my post HERE , containing lots of links, and you also commented a fair amount on that thread...which is now spookily like the situation I now find myself in)... allowing one to adjust after receiving a denial but before a final order of removal...instead of having to wait for the final order. 

 

In my situation, my denials all cite INA 216(c)(3) only. The mentions of fraud are only in the text, and of course no NTAs issued for any denial to date. 

One still has to prevail on the I-751 from first marriage…and that will be way easier in court , than you have experienced w USCIS. 

https://www.cliniclegal.org/resources/family-based-immigration-law/new-bia-decision-addresses-scope-ina-ss-204c

But the Pak decision is an alert that marriage fraud concerns remain in the picture even if it was not the stated basis of a prior petition’s denial

 

The funny thing is that they won’t “ tell “ you that you picked up a 204 (c) bar until you try to get a new I-130 /new spouse through

 

 

https://www.cliniclegal.org/resources/family-based-immigration-law/spousal-petitions/practice-advisory-sham-marriages-and

 

The Board of Immigration Appeals, or BIA, held that a conditional permanent resident cannot use an INA § 237(a)(1)(H) waiver to prevent deportation where the person’s termination of a conditional residency was based on failure to file a joint petition. Similarly, a 237(a)(1)(H) waiver cannot be used in lieu of, or together with, a “good faith” waiver under section 216(c)(4)(B) to waive the requirement to file a joint petition to remove the conditions on residence.

 

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1186a&num=0&edition=prelim

 

D) Hearing in removal proceeding

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.

[mindthegap 2,537]

Thanks. I love finding new bits of 'matter of' case law containing nuggets of gold....

 

"The BIA’s decision limits the ability of practitioners to seek 237(a)(1)(H) waivers for conditional resident clients in removal proceedings. Arguably, the decision does not eliminate the possibility that some conditional residents can continue to seek 237(a)(1)(H) waivers. However, it limits the class of conditional residents who may be eligible for these waivers. Specifically, the BIA focused on the fact that the noncitizen’s conditional resident status was terminated for failure to file a joint petition. In Bador, a joint petition was initially filed, but the U.S. citizen ultimately withdrew her support for the petition, which under the law is treated as a failure to file.   "

 

That actually raises a VERY interesting point that I had completely overlooked in my case for all this time.....

They went to USCIS and claimed they did not know of, consent to, or sign an I-751, so why was their support not withdrawn, either at their request (which you would think would be pretty much automatic if you are claiming that you didn't know about it), or at the instruction of USCIS? Why did it persist as a joint filing for over two years until I had an opportunity to switch to a divorce waiver at interview. 

It absolutely was still being treated as a joint petition, as I was instructed to tick the 'divorce waiver' box at the interview (the one that I have a recording of too!)

Had it just been withdrawn and then NTA/notice issued of failure to file..that would be very different to the present scenario. 

 

That has now been added to my notes for future use as that is a very interesting angle. 

 

 

 

Maybe one day there will be 'matter of mindthegap' being cited....although I really don't want that😅

 

 

Edited January 9 by mindthegap

[Family 3,515]

53 minutes ago, mindthegap said:

Thanks. I love finding new bits of 'matter of' case law containing nuggets of gold....

 

"The BIA’s decision limits the ability of practitioners to seek 237(a)(1)(H) waivers for conditional resident clients in removal proceedings. Arguably, the decision does not eliminate the possibility that some conditional residents can continue to seek 237(a)(1)(H) waivers. However, it limits the class of conditional residents who may be eligible for these waivers. Specifically, the BIA focused on the fact that the noncitizen’s conditional resident status was terminated for failure to file a joint petition. In Bador, a joint petition was initially filed, but the U.S. citizen ultimately withdrew her support for the petition, which under the law is treated as a failure to file.   "

 

That actually raises a VERY interesting point that I had completely overlooked in my case for all this time.....

They went to USCIS and claimed they did not know of, consent to, or sign an I-751, so why was their support not withdrawn, either at their request (which you would think would be pretty much automatic if you are claiming that you didn't know about it), or at the instruction of USCIS? Why did it persist as a joint filing for over two years until I had an opportunity to switch to a divorce waiver at interview. 

It absolutely was still being treated as a joint petition, as I was instructed to tick the 'divorce waiver' box at the interview (the one that I have a recording of too!)

Had it just been withdrawn and then NTA/notice issued of failure to file..that would be very different to the present scenario. 

 

That has now been added to my notes for future use as that is a very interesting angle. 

 

 

 

Maybe one day there will be 'matter of mindthegap' being cited....although I really don't want that😅

 

 

Don’t look at the tree..focus on the forest. 😂

I will assume here that your ex spun a tale of fraud ..way more colorful than the “ not my signature “ bit /morsel that USCIS disclosed to you. This is always the case with Vengeful Spouses. ..

But ..even if Mickey Mouse signed the I-751 ..and she painted you as you  as

 

 

 

..you are rock solid with bonafides at inception /and during of marriage …and will prevail . 

 

[Family 3,515]

Hope you are having a few good zen days , in your new mindset . 
 

Here is a bit more ammunition, as you prepare to interview / consult the attorneys to hire .

 

 

Form I-751 Denials and Immigration Court

If the I-751 is denied by USCIS, the case will be referred to an immigration court for deportation proceedings. This occurs whether the I-751 is a joint petition or a waiver petition. In immigration court, the alien can ask the immigration judge to review the I-751 denial. If the I-751 was filed jointly by the married couple, the government's trial attorney has the burden of proving that the marriage was not entered into in good faith. INA 216(c)(2)(B). The government must prove the marriage is not bona fide by a preponderance of the evidence.

The government attorney must provide the court and the alien with a copy of the administrative record including the I-751 petition, all supporting documents and the decision of the USCIS examiner. The government attorney may produce the USCIS examiner as a testifying witness, but is not required to do so unless the judge or alien insists.

 

https://www.ocimmigrationattorney.com/form-i-751-denials-and-immigration-court.html

[mindthegap 2,537]

Thanks. I'm happy with what they have to show now - the burden of proof is on them, fair and square. 

Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019), the Board stated that evidence of marriage fraud must be “substantial and probative,” meaning that the determination must involve consideration of all relevant evidence in its totality, and establish that it is “more than probably true that the marriage is fraudulent."

 

“Evidence of a fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” 

and 

“[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.” 

and

“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.”

 

Case law is fun!

 

 

 

So right now it is a mixture of zen, anger and furious typing. 

I am currently disecting lots of pagse of my prior FOIA A# response file for any useful things I may have overlooked or warrant a second look... and looking at lots of other stuff.

I must confess, finding a scan of a five page formal legal document with four separate ink signatures on - all of which are completely different - sort of made my morning today, especially as the original is in a box somewhere, safe and sound.  I have a lot of other examples now too - very handy when someone is multi nationality and you have copies of all their prior and (at the time) current passports, all with differing signatures.....

 

 

I will soon be putting in another FOIA request for the newer bits of the A# file since the last one (which covers the last filing), plus another request for a couple of  documents from & around specific dates, regarding details of the allegations made, as they must be in there somewhere, and I have still not ever been confronted with or shown them, or given an opportunity to rebut.

This is directly contrary to 8 CFR 103.2(b)(16)(i)  & also contrary to the clarification in the July 2018 Policy Memorandum PM-602-0163 “Issuance of Certain RFEs and NOIDs; revision to Adjudicators Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b).

 

“Under 8 CFR 103.2(b)(16)(i) if a decision adverse to the applicant, petitioner, or requestor is based on derogatory information, and the applicant, petitioner, or requestor is unaware that the information is being considered, generally the officer must advise the applicant, petitioner or requestor, as applicable, of this information and offer an opportunity for rebuttal before the decision is rendered. Any explanation, rebuttal, or information presented by or on behalf of the applicant, petitioner, or requestor must be included in the record of proceeding. There is an exception for classified materials.”

 

Also, the regulations at 8 C.F.R Section 216.4(c)(4) state:

“If derogatory information is determined regarding any of these issues, the Director shall offer the petitioners the opportunity to rebut such information”. 

 

This is also referenced on page 4 of the Citizenship and Immigration Services Ombudsman document of February 8^th 2013, titled  “Improving the Process for Removal Of Conditions on Residence for Spouses and Children”.

 

 

I'm expecting a negative and fully redacted response of course. Nothing but the finest service from USCIS.

They have to show it to me eventually in/before court if nowhere else, I'd just prefer to see it now. 

 

 

Edited January 11 by mindthegap

[Family 3,515]

1 hour ago, mindthegap said:

Thanks. I'm happy with what they have to show now - the burden of proof is on them, fair and square. 

Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019), the Board stated that evidence of marriage fraud must be “substantial and probative,” meaning that the determination must involve consideration of all relevant evidence in its totality, and establish that it is “more than probably true that the marriage is fraudulent."

 

“Evidence of a fraudulent marriage “must be documented in the alien’s file and must be substantial and probative.” 

and 

“[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.” 

and

“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.”

 

Case law is fun!

 

 

 

So right now it is a mixture of zen, anger and furious typing. 

I am currently disecting lots of pagse of my prior FOIA A# response file for any useful things I may have overlooked or warrant a second look... and looking at lots of other stuff.

I must confess, finding a scan of a five page formal legal document with four separate ink signatures on - all of which are completely different - sort of made my morning today, especially as the original is in a box somewhere, safe and sound.  I have a lot of other examples now too - very handy when someone is multi nationality and you have copies of all their prior and (at the time) current passports, all with differing signatures.....

 

 

I will soon be putting in another FOIA request for the newer bits of the A# file since the last one (which covers the last filing), plus another request for a couple of  documents from & around specific dates, regarding details of the allegations made, as they must be in there somewhere, and I have still not ever been confronted with or shown them, or given an opportunity to rebut.

This is directly contrary to 8 CFR 103.2(b)(16)(i)  & also contrary to the clarification in the July 2018 Policy Memorandum PM-602-0163 “Issuance of Certain RFEs and NOIDs; revision to Adjudicators Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b).

 

“Under 8 CFR 103.2(b)(16)(i) if a decision adverse to the applicant, petitioner, or requestor is based on derogatory information, and the applicant, petitioner, or requestor is unaware that the information is being considered, generally the officer must advise the applicant, petitioner or requestor, as applicable, of this information and offer an opportunity for rebuttal before the decision is rendered. Any explanation, rebuttal, or information presented by or on behalf of the applicant, petitioner, or requestor must be included in the record of proceeding. There is an exception for classified materials.”

 

Also, the regulations at 8 C.F.R Section 216.4(c)(4) state:

“If derogatory information is determined regarding any of these issues, the Director shall offer the petitioners the opportunity to rebut such information”. 

 

This is also referenced on page 4 of the Citizenship and Immigration Services Ombudsman document of February 8^th 2013, titled  “Improving the Process for Removal Of Conditions on Residence for Spouses and Children”.

 

 

I'm expecting a negative and fully redacted response of course. Nothing but the finest service from USCIS.

They have to show it to me eventually in/before court if nowhere else, I'd just prefer to see it now. 

 

 

Good to see your spirits are lifted. 

Try to target picking an attorney as next step. 

There will be strategies you will need to trust in, once you find him/her. With respect to the signature , an expert witness ( handwriting) would blow the entire song and dance ( superbly and intentionally vague assertion by USCIS that the 1st Joint I-751 was deficient )..

 

So , I still recommend stepping back a bit and see your case through the eyes of another . 

 

 

[Amunah 61]

You will slay this because giving up is simply not an option. Never surrender. We didn’t.  Keeping you in my duas. 

[Verrou 1,899]

On 1/8/2024 at 7:21 PM, Family said:

I am sure she will give great input , as always. She did not chime in when Verrou/Misscloud was looking for removal attorneys in that area …so I guessed , it was not her cup of tea.
But I was under the impression she was not in private practice , rather worked for some NGO . 

I’m quite specific that I want / need lawyer from Boston. Dunno if she is ? If OP need great Boston’s lawyer please HMU 

 

also I’m not a fan of immigration court just because of the hearings date keep push around and not specifically because of a judge. Though I have the toughest hardest judge while my case still in NYC. Most of the time the judge themself is quite lenient vs to USCIS (asylum). I have couple of friends got their GC granted by the judge, some has more compassion then USCIS. 

 

and I rather handle USCIS (piece of cake ) vs court. but when USCIS denied ur filing couple of times I think it’s time to cook  another game plan 

Edited January 31 by Verrou