Family Reunification INA §§ 217, 204(a)(2),(c),(g), 245(d),(e)
- Family Reunification INA §§ 217, 204(a)(2),(c),(g), 245(d),(e)
Same-Sex Marriage and Immigration:
Adams v. Howerton (1982): rejecting petition for same-sex partner beneficiary, as incompatible with Congressional intent
1952 INA “spouse,” considered in light of § 212 designation of homosexuality as “psychopathic” disqualification to immigration, does not confer benefit to this couple
Recent developments:
1996 DOMA defined marriage in heterosexual terms for purposes of federal law
Lawrence v. Texas: can’t use criminal law to express disapproval of homosexuality, but Fiallo left Congress with a lot of leeway in admission / exclusion of aliens
Sham Marriages:
Bark v. INS 9th Cir (1975): INS denied application for residency based on marriage b/c of separation of parties.
Intent at inception of marriage. A marriage is a sham only if parties married for purposes of obtaining residency or citizenship for one of them, not if they intended to stay together at the time.
Conduct after marriage only relevant to extent bears upon subjective state of mind at the time of marriage.
Any other measure of what a real marriage is raises constitutional issues of privacy – avoid.
Dabaghian v. Civiletti 9th Cir (1975): DOJ rescinded P’s LPR status b/c his marriage to an American citizen was in its final stages with divorce imminent. (Filed for divorce 2 wks after adjustment, remarried quickly.)
“Factually dead test” rejected.
Proper test: 1) whether marriage legit at inception 2) whether it legally existed when residency granted.
Congress hadn’t established guidelines for “factual death”; AG had no authority to make that finding
Arguments/Thoughts on cases:
Both use the constitutional language of privacy, but they’re principally administrative law.
Possible that Congress would have authority to amend statute to impose “factually dead test.”
Could argue that Court should apply agency deference ala Chevron II as Congress has not been explicit re issue.
In order to ascertain sham at inception Ct must conduct similarly intrusive inquiry. Privacy may be weak argument.
How to actually prevent marriage fraud not addressed.
Immigration Marriage Fraud Act of 1986
INA § 216: LPR status based on marriage <2 yrs old is “conditional” for 2 yrs (counts towards citizenship)
90 days before end of period, both spouses must petition DHS to have conditionality “removed.”
In case of extreme hardship joint filing req’t can be waived (§ 216(c)(4)) (see below)
Removal requires showing good faith marriage, lawful marriage, still-existing marriage (§ 216(d))
DHS has statutory authority to call both spouses for interview; usually waived.
Purpose: Conditional Status keeps people in the system, making it easier to track new marriages.
Conditional Status applies to:
Spouses of citizens (201(b)) and LPRs (203(a)(2))
Not to follow-along (203(d)): keeping families together trumps preventing marriage fraud
Hardship Waiver: INA § 216 (c)(4) (A-C) Waiver of Joint Filing Req. (3 possibilities)
Hardship: only circumstances occurring during conditionality period count
Circumstances above those normally caused by removal proceedings
Marriage entered in good faith and legally terminated; alien not at fault for meeting filing requirements, or
Marriage entered in good faith and alien spouse or child was battered.
VAWA 1994 allows battered spouse/child to self- petition if extreme hardship is shown.
VAWA 2000 removed extreme hardship. Good moral character required (§ 204 (a)(1)(C))
Sample Problem:
Problem 3, p. 318 (assume marriage was less than two years)
C’s status when D walked out on her: she was conditionally married as an LPR (less than two years from conditional status removal)
C needs D in order to petition for removal of her conditional status (joint petition) -216(d): In the petition, C and D have to certify that there marriage wasn’t entered into just to gain admission, marriage was in accordance w/ the law where they were married and hasn’t been judicially annulled or terminated
216(c)(4) – Waiver Possibilities. 216 (c)(4)(B)- still married so doesn’t apply, 216 (c)(4)(C) no D.V indicated. So left with 216 (c)(4)(A) extreme hardship- which is most difficult of three to establish.
Arguments: she would have to leave baby behind w/husband b/c of custody: hardship if underlying policy is to keep families together. But tricky because this is typical circumstance of removal. Might not fly.
If had baby outside states before had baby even more problematic because hardship has to occur during conditional status period.
The Visa Process
U.S. family member files visa petition with CIS. U.S. person is the petitioner; the noncitizen is the beneficiary.
CIS approves visa petition and sends it to local consulate. Consular officer interviews beneficiary and applies any inadmissibility grounds.
Visa is granted, noncitizen immigrates to U.S.
If already in the U.S., CIS examiner interviews noncitizen, who applies for adjustment of status once petition is approved.
The Child Status Protection Act (mostly in INA § 201 (f), 203 (h), 204 (k))
Prevents children from aging out of “under 21” categories. For immediate relatives, child’s age is fixed when parent files visa petition.
If parent naturalizes, child’s age is fixed on date of naturalization. This often moves petition from 2B to 1st. If that causes a slow-down, CIS allows the child to choose to remain 2B.
For 2A and derivative beneficiaries, age is fixed when the priority date becomes current, which can be a long wait. But processing time can be subtracted.
Authority over Family Definitions
Fiallo v. Bell (1977): Judicial deference
Old INA said the natural father of an illegitimate child who is a citizen or LPR cannot get family preference as a “parent.” Fiallo brings EPC challenge, says it doesn’t further govt interests and is unfair to fathers and children.
SC: Congress can make these distinctions for policy reasons. Not our area.
Dissent: Statutes should not exclude all illegitimate children, and should be tuned to alternative considerations. Unlike most immigration cases, this involves the rights of citizens, and so should have higher constitutional scrutiny.
This definition later changed by statute.
Immigration Based on Marriage
Recognized marriages
CIS recognizes marriages valid under the laws of the place they are held
However, proxy marriages, where the parties were not physically present, aren’t valid unless the marriage was consummated
Marriages that conflict with public policy are also not eligible (cousins, polygamy)
Two step analysis in Adams v. Howerton (1982):
Is the marriage valid under state law?
And does it qualify under the INA?
A same-sex marriage with a license from CO may or may mot be valid, but it doesn’t qualify under the INA because Congress didn’t intend that (common meaning of spouse is opposite-sex, homosexuality was a ground of exclusion then) (What about now, post-DOMA but post-Lawrence?)
IMFA and the green card process
Spouses and their alien children who gain LPR status through a marriage less than 2 years old get a conditional green card for 2 years. § 216 (a)(1)
If during those 2 years DHS Secretary determines that marriage was entered into for immigration purposes, has been judicially annulled or terminated (other than through death) or a fee or other consideration was given for the petition, the conditional status can be terminated and alien is deportable under § 237(a)(1)(D).
Both spouses have to petition within 90 days of the end of the 2-year period to remove the conditional status. If they do not petition, or if petition is denied – non-citizen is deportable.
Discretionary waivers are available for the joint filing requirement. § 216(4) Noncitizen must demonstrate extreme hardship AND show that marriage was entered into in good faith by the alien spouse and the termination was not his/her fault, OR that the marriage was entered into in good faith and alien spouse was victim of domestic abuse. However, the hardship must arise from the 2-year period (like a child born then)
The conditional period counts toward the naturalization clock.
Sham marriages
Otherwise valid marriages entered into solely to get immigration benefits are not recognized.
Evidence of separation does not alone support a finding that a marriage was not bona fide when it was entered. Standard is whether they intended to establish a life together at the time of marriage. Bark v. INS, 1975
Even being separated at the time of adjustment of status doesn’t mean the marriage is not legally valid or not a sham for immigration purposes. Dabaghian v. Civiletti, 1979
A lawyer’s responsibility: Model Rules prohibit a lawyer from assisting a client in conduct the lawyer knows is fraudulent.
VAWA and spousal abuse
In abusive marriage, anchor spouse has significant power over noncitizen spouse who needs him to acquire green card or remove conditions.
Under Violence Against Women Act (2000), battered spouses and children can self-petition for LPR. Must show good faith marriage, good moral character, and abuse or extreme cruelty. Can also ask for cancellation of removal.
