IMMIGRATION MARRIAGE FRAUD

In almost every community of foreigners in the United States there is some guy (a non-lawyer) who will do your taxes, give you financial advice, sell you some real estate, notarize some documents, fill out immigration forms, and even arrange a marriage or two between US citizens and aliens. Often, as has happened in Los Angeles, rings of hustlers and con-men join forces to form interstate criminal enterprises in which they recruit US Citizens who are down on their luck to marry aliens (in exchange for a fee paid by the alien) so as to apply for and acquire from the Government Lawful Permanent Resident (LPR) status. Sometimes aliens who are limited in their options for immigration due to their overstays and unlawful employment, become desperate and particularly vulnerable to these schemes. They are further emboldened in their resolve to commit marriage fraud by testimonials from community members who have successfully taken the marriage fraud route and been rewarded by the issuance of LPR status.

In such communities there is a great deal of discussion of the benefits of marriage fraud, but very little discussion of its downside. I will not engage here in a lengthy discussion regarding the legal prohibition and legalistic consequences of marriage fraud, since most aliens recognize that paying someone to arrange a marriage and misrepresenting the nature of that marriage to the Government in order to receive immigration status, is highly illegal and may result in serious consequences if discovered. Aliens should know however, that if a finding of marriage fraud is made against them, they may be barred from ever adjusting their status in this country in the future, deported from the United States, refused visas or entry into the US in the future, and might even be prosecuted under criminal statutes for fraud. What I wish to discuss in this article is how marriage fraud compromises the integrity of the alien and may cause the alien to be victimized in so many ways.

THE US CITIZEN SPOUSE IN A MARRIAGE FRAUD SCHEME: In a marriage fraud scheme, the US Citizen spouse is usually someone who is very much down on his or her luck. These people often have drug and alcohol habits, past due back taxes, broken down cars in need of repair, multiple children for whom back child support is owed, etc.. The alien should understand instinctively that a reputable, upstanding, and gainfully employed US Citizen does not need to marry and petition for an alien in exchange for a few thousand dollars. The very fact that the US Citizen is willing to do this should trigger great apprehension within the alien and speak volumes about the particular US Citizen's own integrity.

THE ALIEN AS WELFARE INSTITUTION: One should expect that if the US Citizen is willing to engage in fraud against the US Government, he or she may quite likely be more than willing to become and extortionist against, and an abuser of the alien once it is clear that the alien is dependent upon him or her for the successful completion of the case. Suddenly the alien spouse becomes a welfare institution for the benefit of the US Citizen spouse - a veritable treasury from which the US Citizen may extract all manner of bounty. The alien suddenly finds herself in the position of fixing the US Citizens car every time it is in need of repair, babysitting his brood of unruly children, sending the US Citizen on vacation, paying the US Citizen's back taxes and child support, etc. The US Citizen might go as far as to demand sexual favors in exchange for his cooperation. The alien need not complain, since such complaints are met with the ever-present threat that the US Citizen will merely abandon the case which would then necessarily fail for the Citizen's lack of participation.

INVESTIGATION: Many USCIS Field Offices investigate a small number of marriage cases randomly. This means that there need not be any red-flag found in the case for the case to be handed over to enforcement officers who will visit the address which the aliens have listed as their joint residence. They often visit in the pre-dawn hours of the morning and will be able to detect through the alien's reaction to the visit and what they find if allowed into the home, whether the marriage is fraudulent or not. They may also speak to the couple's neighbors and show photographs of each spouse to the neighbors to determine whether the neighbors are aware of each spouse's residence at the particular address. The fraud is generally easily discovered in such an investigation. Aliens filing fraudulent marriage cases should understand that there is no guarantee that they will not be the subject of such a visit. Investigators will generally not stop with the pre-dawn visit when they have sniffed out marriage fraud. They will delve into aspects of the alien's taxes, employment, insurance arrangements, relationships, etc., to build a solid marriage fraud case, before the alien is referred to Immigration Court for deportation, or to a criminal prosecutor.

LAWYERS: Aliens sometimes believe that it is the attorney's role to assist them in the furtherance of their marriage fraud adjustment of status cases. Where an attorney has good reason to believe that a marriage is fraudulent, the attorney cannot assist the alien in that particular adjustment of status. The attorney should advise the alien in no uncertain terms that marriage fraud is unlawful and may result in serious consequences to the alien. The attorney should additionally do nothing to assist the alien in the furtherance of such fraud. Aliens should know that the attorney is performing his or her duty both to them and to their own ethical obligations when this advice is given. An attorney can represent an alien accused of marriage fraud to explain why in spite of an appearance of marriage fraud to the Government, the conduct did not legally rise to the level of marriage fraud.

Lawyers will generally accept a client's word that they are in a bonafide marriage, if there is no reason to suspect marriage fraud. Most of us advise our clients not to commit marriage fraud for the reasons listed in this article, regardless of how valid the marriage appears to be. Where the lawyer discovers fraud in the marriage after the petition is filed, the lawyer will advise the client to withdraw or abandon the case, in spite of the fact that there is a high probability that the alien may be referred to immigration court. It is better to be referred to immigration court, where the alien may be able to seek other forms of relief and at a minimum, perhaps, voluntary departure, than encourage the alien to compromise him or herself by lying under oath.

THE ADJUSTMENT OF STATUS INTERVIEW: An adjustment of status interview is conducted by a trained USCIS Adjudications Officer. The US Citizen and the alien must be present at the interview and must be prepared to present documentation and answer questions related to the bonafides of the marriage. In a case in which the marriage is in good faith with the representation of an experienced lawyer who has prepared the case thoroughly, this interview can appear to be more of a formality than anything else, lasting mere minutes. Where the marriage is fraudulent, the couple's documentation or lack thereof often raises red-flags in the mind of the interviewer which can turn the interview into a nightmare for the alien. Some field offices, will detain aliens at the adjustment interview where they have sufficient reason to believe that marriage fraud has been perpetrated.

It is also very common in marriage cases for the fraudulent US Citizen spouse not to show up on the day of the interview. It is equally common for such US Citizen to completely turn on the alien at the interview and admit to the fraud in exchange for the Government's lenient treatment. This, after the US Citizen has extracted in some instances as much as $10,000 to $15,000 from the alien.

It is equally common for the couple in a marriage fraud scenario to give conflicting answers to the officer regarding their relationship and joint lives, resulting in denial of the case, and sometimes a finding of marriage fraud.

REFERRAL TO IMMIGRATION REMOVAL PROCEEDINGS: It is common these days, for USCIS to refer an out of status alien who has been denied adjustment of status based on a US Citizen marriage, to Immigration Court Removal Proceedings. Officers can opt to simply deny and close the case where the case is denied without any real incriminating factors being exposed. However, even in the most benign circumstances of denial, applicants are often referred to immigration court.

VICTIMS OF ABUSIVE US CITIZEN SPOUSES: Merely because a US Citizen spouse is disreputable or abusive does not mean that the alien entered into the marriage solely for the purpose of acquiring lawful residence by defrauding the Government. Aliens like anyone else, sometimes fall in love with and marry troubled and abusive US Citizens. Sometimes, the mere poor character of the US Citizen creates the erroneous determination in the mind of the adjudications officer that the marriage must have been fraudulent. Here the alien has married in good faith with the pure intent which is required in marriage cases; often she has been beaten and abused by her US Citizen spouse, who she has remained with out of love (as is typical in many abusive relationships); and now her case has been denied, not because she has committed fraud, but because of the flawed perception of the interviewing officer. Such aliens have not committed marriage fraud and can potentially be viewed as victims by the Government.

These aliens can sometimes find relief through the Violence Against Womens Act (VAWA), both with USCIS or in Immigration Court. The Court procedure differs from the procedure with USCIS in some notable ways, and aliens in such circumstances should be assisted by an experienced lawyer.

THE LESSON HERE: Do not commit marriage fraud. It is illegal and is not worth it. The compromises to integrity which may have to be made along the way, might affect the alien's very soul for a lifetime. Do not be angry with the lawyer when he sternly advises against this approach, and understand that it is sometimes better to do nothing and maintain your status quo than commit fraud. Further, simply because your marriage case has been denied does not mean you have committed marriage fraud. There can be any number of innocent reasons why a marriage case might be denied. Talk to a lawyer before you make any decisions with regard to filing a marriage case and you will most likely receive the proper advice.

Duane M. Hamilton

KENYAN ASYLUM AND OTHER FORMS IMMIGRATION RELIEF

Kenyans often present difficult immigration cases. A large segment of the community are good people who have overstayed their visas in the United States. They have no qualifying relatives or employers who might file immigration petitions on their behalf, and their overstays and unlawful employment in the United States often frustrates most forms of adjustment of status (the application for lawful permanent residency while the alien remains in the U.S.). Further compounding their troubles is the fact that they often become the victims of unscrupulous non-lawyers who mislead and take advantage of them.

However, beneath the surface of Kenyan society, boils a cauldron of political and social unrest, corruption and violence which drive a great number of Kenyans from their country. Many become the victims of domestic violence, both in Kenya and often at the hands of abusive U.S. Citizens or permanent resident spouses, who promise them the world, then hold them hostage, using their immigration vulnerability to enslave and coerce them. Some have lived in the United States for extremely long periods of time with immediate family members who are either US Citizens or Lawful Permanent Residents . Many Kenyans unfortunately, never come to an understanding that such circumstances, with very careful legal representation, could lead to a resolution of their lack of immigration status, without compromising their integrity. These aliens might qualify for asylum, withholding of removal, relief under the Torture Convention, Cancellation of Removal, protection under the Violence Against Women's Act (VAWA), adjustment of status, or other forms of immigration relief.

Chow & Hamilton's work with Kenyan asylum seekers and immigration court litigants is believed to be the gold standard in the United States. Hamilton's understanding of Kenya and techniques for winning Kenyan immigration cases has been crafted over the last 15 years. Hamilton is thought to be the longest standing attorney in the United States representing Kenyans in asylum claims on a consistent basis and over the last three years all of his Kenyan Immigration Court clients have been granted either asylum, withholding of removal, relief under the torture convention, adjustment of status, or cancellation of removal. This is quite remarkable since over 90% of the firm's immigration caseload are Kenyans.

Maria Rangel.