Limited Avenues of Relief from Removal Based on Marriage Fraud

 

Introduction

“Marriage fraud,” that is to enter into or endeavor to enter into a marriage for the sole purpose of procuring immigration benefits, is a very serious charge in the immigration context. Depending on the facts of the case, marriage fraud can result in lifetime inadmissibility, removal, and/or a bar on the alien having certain immigrant visa petitions approved in the future. Furthermore, marriage fraud can even result in criminal consequences in addition to civil immigration consequences.

In certain cases, an alien may be able to seek relief from the consequences of marriage fraud or a waiver of inadmissibility or deportability. However, due to the gravity of marriage fraud, a finding of marriage fraud will often be fatal to an alien's U.S. immigration prospects. The question will always come down to a case-specific and fact-specific inquiry. In this article, we will examine different civil immigration consequences of marriage fraud and when relief may be available. This article will not focus on criminal penalties for marriage fraud except as they may cause problems in seeking relief.

Marriage Fraud

As we note in our main article on marriage fraud [see article], the best — indeed the only safe — course of action is to never engage in marriage fraud. In addition to its illegality, an alien should assume that entering into a sham marriage will result in irrevocable penalties.

Understanding the Main Civil Marriage Fraud Penalties

Attempting to procure or procuring immigration benefits through a sham marriage can lead to inadmissibility and/or deportability, depending on the alien's status.

It is important to understand what a “sham marriage” is. A sham marriage is a marriage that “was entered into for the purpose of procuring an alien's admission as an immigrant” under section 216(b)(1)(A)(i) of the INA (listing grounds for terminating conditional permanent resident status based on marriage). In short, this means that a marriage that is entered into for the sole purpose of circumventing the immigration laws is not recognized as valid. This is not to say that immigration benefits cannot be a factor in the marriage, but rather that it cannot be the sole purpose of the marriage. In Matter of Laureano, 19 I&N Dec. 1 (BIA 1983) [PDF version], the Board held that “in determining whether a marriage is fraudulent for immigration purposes, the conduct of the parties after the marriage is relevant as to their intent at the time of marriage…” The burden to establish the validity of a marriage in visa petition proceedings rests with the petitioner under Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [see article]. Whether an individual can prove a marriage was not entered into for the sole purpose of procuring immigration benefits will depend on the facts of the case. We discuss things that immigration officers look for as indicators of marriage fraud in our related article on the subject [see section].

Inadmissibility, deportability, and criminal penalties are not the only penalties that may accrue from marriage fraud. Under section 204(c) of the INA, an alien who for whom it is determined has previously sought status based on a fraudulent marriage (whether or not he or she obtained such status) is precluded from having an immigrant visa petition under section 204(b) approved on his or her behalf. This covers family-sponsored and employment-based immigrant visa petitions.

In the forthcoming sections, we will examine inadmissibility, deportability, and the marriage fraud bar to immigrant visa petition approval. As we noted in the introduction, this article will not focus directly on criminal penalties for marriage fraud except for how they may interact with sections 212, 237, or 204 of the INA.

Inadmissibility

Under section 212(a)(6)(C)(i) of the INA, an alien who through fraud or misrepresentation of a material fact seeks to procure or procures a visa, other documentation, or admission to the United States is inadmissible. Section 212(a)(6)(C)(i) also covers seeking to procure or procuring any benefit under the INA through fraud or misrepresentation of a material fact. Section 212(a)(6)(C)(i) inadmissibility attaches for life.

There is a limited possibility of a waiver of section 212(a)(6)(C)(i) inadmissibility available through section 212(i). The granting of such a waiver is discretionary. An alien may apply for the waiver if he or she is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident and if he or she establishes that the refusal of his or her admission would result in extreme hardship to his or her qualifying relative. We discuss “extreme hardship” in this context in our full article on Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [see article]. A Violence Against Women Act (VAWA) self-petitioner may rely on establishing extreme hardship to him or herself. As we will examine, the 204(c) bar limits the applicability of section 212(i) for anyone found to have entered into or attempted to enter into a fraudulent marriage.

In the United States Citizenship and Immigration Services (USCIS) Policy Manual (PM) at 8 USCIS PM 3.J, the USCIS stated with regard to section 212(a)(6)(C)(i) that “[t]he burden of proof to establish admissibility during the benefit-seeking process is always on the applicant.” The USCIS added that “[d]uring the adjudication of the benefit, the burden never shifts to the government,” citing to Matter of Arthur, 16 I&N Dec. 556 (BIA 1976) [PDF version]. An applicant fails to meet his or her burden of proof “if there is evidence that would permit a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation…” We also discuss the burden of proof with regard to section 212(a)(6)(C)(i) in our article on Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) [see article].

In short, the issue of section 212(a)(6)(C)(i) inadmissibility arises in the visa application and adjustment of status processes. The burden always rests with the applicant to establish his or her admissibility when applying for a visa or adjustment of status.

Prohibition on Subsequent Petitions

Section 204(c) prevents an alien who was found to have engaged in, attempted to engage in, or conspired to engage in marriage fraud from having a subsequent immigrant visa petition approved on his or her behalf. Notwithstanding waivers, section 204(c) prevents an individual from having a subsequent family- or employment-based immigrant visa petition filed on his or her behalf approved. The section 204(c) bar is permanent and cannot be waived. However, even if section 204(c) attaches, it does not bar an alien from other forms of relief, such as asylum, withholding of removal, protection under VAWA, cancellation of removal, or other paths to immigrant status that do not rely on a family- or employment-based petition.

It is important to note that 204(c) does not necessarily attach in every case where a benefit request is denied on a finding of insufficient evidence establishing the bona fides of a marriage. In order for section 204(c) to attach, it must be established that the marriage was entered into for purpose of evading the immigration laws. Thus, where the evidence supporting the legitimacy of the marriage is insufficient for one reason or another 204(c) does not necessarily attach, but when the evidence demonstrates that the marriage was fraudulent 204(c) attaches.

Under 8 C.F.R. 204.2(a)(ii), there bust be “substantial and probative” evidence in the alien's file of the prior attempt or conspiracy to procure immigration benefits through a sham marriage. Under Matter of Kahy, 19 I&N Dec. 803 (BIA 1988) [PDF version], the Board held that the burden of proof shifts to the alien the the alien's record contains evidence that he or she previously attempted or conspired to procure immigration benefits through a sham marriage.

It is important to note that section 204(c) is considered when an immigrant visa petition is being adjudicated, whereas inadmissibility is considered when the alien applies for a visa or adjustment of status. To learn more about this distinction, please see our article on the precedent Administrative Appeals Office (AAO) decision in Matter of Christos Inc., 26 I&N Dec. 537 (AAO 2015) [see article].

Deportability

Under section 237(a)(1)(A) of the INA, an alien who was inadmissible at the time of entry or adjustment of status is deportable. This includes inadmissibility at the time of entry or adjustment under section 212(a)(6)(i). Furthermore, section 237(a)(1)(G) contains a deportability provision specifically for section 212(a)(6)(C)(i). Under this provision, an alien is deportable if he or she gains status based on a marriage, the marriage is judicially annulled or terminated within two years, and the alien fails to establish that the marriage was not entered into for purpose of evading the immigration laws. The provision also renders deportable an alien who fails to establish that his or her marriage was not entered into for purpose of circumventing the immigration laws (regardless of whether it was within the two-year period). The Government has the burden of proving deportability by clear and convincing evidence. For example, see Matter of Tijam, 22 I&N Dec. 408, 421 (BIA 1998) [PDF version].

237(a)(1)(H) provides for a discretionary waiver of deportability for an alien who was determined to have been removable at the time of admission for fraud or misrepresentation of a material fact as described in section 212(a)(6)(C)(i) (meaning deportability charges under section 237(a)(1)(A)). It covers all fraud whether it was willful or innocent. In order to be eligible for the waiver, the alien must be the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident. As we will see, the requisite family relationship cannot be based on a fraudulent marriage. Furthermore, the alien must have been in possession of an immigrant visa or equivalent or have otherwise been admissible but for the fraud or misrepresentation. VAWA-self petitioners are eligible as well.

Application of section 237(a)(1)(H) waives deportability for an alien who is already in the United States. Accordingly, it may be granted even if the alien would be subject to section 204(c). However, waivers are discretionary, and a finding of marriage fraud will always weigh heavily against the granting of a waiver.

Inadmissibility Waiver

If an alien is deemed inadmissible under section 212(a)(6)(C) for marriage fraud, he or she will likely be ineligible for a section 212(i) waiver in applying for an immigrant visa or adjustment of status. First, in many cases, the alien would lack a qualifying relative. Second, section 204(c) would likely render the 212(i) waiver moot in most contexts, for it would prevent the immigrant visa petition from being approved regardless of whether the alien would otherwise meet the requirements for a 212(i) waiver. Whether section 204(c) attaches would be a central question in determining whether a section 212(i) waiver would be relevant.

In Salas-Velazquez v. INS, 34 F.3d 705 (8th Cir. 1994) [PDF version], the Eighth Circuit held that section 204(c) cannot be waived and that it “overrides the general availability of relief under [s]ection 212(i).” This case involved an alien who had entered as a visitor, attempted to procure adjustment of status through a fraudulent marriage, and then sought a waiver of inadmissibility in the context of seeking adjustment of status based on a subsequent valid marriage. The Eighth Circuit found that the alien was ineligible for adjustment and for a 212(i) waiver due to the section 204(c) bar precluding his adjustment based on the subsequent marriage. Please see our section on deportability to learn more about this important decision.

In Coelho v. Gonzales, 432 F.3d 104 (1st Cir. 2006) [PDF version], the First Circuit upheld a Board of Immigration Appeals (BIA) decision denying an employment-based adjustment of status application based on 212(a)(6)(C) inadmissibility. The inadmissibility in this case stemmed from marriage fraud. The Immigration Judge had denied the petition under section 204(c). What is noteworthy in Cohelo is that the First Circuit did not find it necessary to reach the section 204(c) question because it determined, as had the BIA, that the petitioner in the case was inadmissible and ineligible for a waiver of inadmissibility. The petitioner was found ineligible for a 212(i) waiver because he did not have a qualifying relative.

In an interesting unpublished decision of the Administrative Appeals Office (AAO) from 2011, the AAO considered the case of an individual who had been charged with section 212(a)(6)(C) inadmissibility for having offered fraudulent documents attesting to a fake marriage in a previous immigrant visa petition [PDF version]. In this case, the AAO determined that section 204(c) did not apply because there was no actual marriage or attempt to enter into a fraudulent marriage, but rather only the submission of documents relating to an entirely fictitious marriage. However, the AAO nevertheless denied the applicant's 212(i) waiver on the basis that the evidence did not support that the denial of his admission would result in extreme hardship to his U.S. citizen wife. Nevertheless, this case highlights that adjudicators will consider a section 212(i) waiver in the context of a subsequent immigrant visa petition provided that section 204(c) is found to not attach.

In Matter of Christos, Inc., the AAO made clear that an alien may be found inadmissible based on submitting false documents pertaining to a fictitious marriage when applying for a visa or adjustment of status, although he or she would not be subject to section 204(c).

Outside of the section 204 immigrant visa petitioning context, an alien may seek a waiver in certain special types of applications. For example, asylees, T visa applicants, U visa applicants, applicants for registry, and other cases where the waiver is not sought in conjunction with a family- or employment-based immigrant visa petition may qualify for a 212(a)(6)(C) waiver. However, it is important to note that waivers are discretionary, and a finding that the alien engaged in marriage fraud will always weigh heavily against the granting of a waiver even in cases where the alien is not barred.

Reach of Subsequent Petition Bar

In this article, we are primarily concerned with how the section 204(c) bar affects an individual's eligibility for relief from the consequences of marriage fraud. For a discussion of proving the bona fides of a previous marriage in order to establish that one is not subject to the bar, please see our full article [see article].

First, as we have noted, if section 204(c) is found to attach, there is no available waiver. Section 204(c) permanently prevents an alien from being approved for an immigrant visa as the beneficiary of a subsequent family- or employment-based immigrant visa petition. Section 204(c) does not apply to any other benefits applications, although an alien who would be subject to it may face other criminal or immigration penalties that would affect his or her ability to gain such benefits. Most importantly, section 204(c) does not affect eligibility for either a 237(a)(1)(H) waiver of removal or cancellation of removal. In an unpublished AAO decision reported in 81 No. 43 Interpreter Releases 1573, 1582 (Nov. 8, 2004), Matter of __ (AAO Apr. 23, 2004), the AAO held that cooperating with a government investigation relating to the marriage fraud scheme does not alleviate section 204(c) attachment.

There is an important distinction between a sham marriage and a situation in which the petitioner and beneficiary merely fail to satisfactorily establish the bona fides of a marriage. Under 8 C.F.R. 204.2(a)(1)(ii), section 204(c) applies where there is “substantial and probative evidence of [an attempt or conspiracy to enter into a marriage for the purpose of evading immigration laws], regardless of whether that alien received a benefit through the attempt or conspiracy.” Although prosecution is not necessary, the determination of the attempt or conspiracy must be recorded in the alien's file. 8 C.F.R. 204.2(a)(1)(iii)(B) addresses evidence required to establish the bona fides of a marriage. Depending on the facts, a petition may fail to meet the evidentiary standard to establish the bona fides of a marriage without their being “substantial and probative evidence” that the marriage was a sham. In Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990) [PDF version], the Board held that adjudicators should reach an independent conclusion on the bona fides of a previous marriage instead of relying solely on a previous determination.

In Matter of Christos, Inc., the AAO held that there must be an actual marriage. Section 204(c) cannot attach based on seeking an immigrant visa based on false documentation pertaining to a fictitious marriage. However, while the alien's immigrant visa petition may be approved because section 204(c) does not apply, he or she may still be found to be inadmissible when applying for a visa or adjustment of status.

As we noted, section 204(c) only bars an individual from having a petition approved as the principal beneficiary of a subsequent family-sponsored or employment-based petition after marriage fraud. Under Matter of Otiende, 26 I&N Dec. 127 (BIA 2013) [PDF version], the denial of an immigrant visa petition for a spouse based on section 204(c) does not prevent the approval of a petition filed on behalf of the spouse's child as the step-child of the petitioner. Such a petition “must be considered on its merits to determine whether the child qualifies as the petitioner's 'stepchild' under the [INA].”

Matter of Isber, 20 I&N Dec. 676 (BIA 1993) [PDF version], carved out a limited section 204(c) exemption. Under Matter of Isber, section 204(c) does not apply to a second marital petition filed by the same spouse upon which the original marriage was found to trigger section 204(c). Essentially, if a marriage is found to be fraudulent, the same petitioner may file another petition that would not be barred by section 204(c).

Deportability Waiver

Notwithstanding section 204(c), an individual may apply for a section 237(a)(1)(H) waiver if he or she is determined to have been inadmissible at the time of entry due to marriage fraud. This is because section 237(a)(1)(H) does not involve a new immigrant visa petition, but rather an attempt to waive removal. It was previously unclear whether section 237(a)(1)(H) and its predecessor statutes applied to aliens who had adjusted to permanent resident status. However, the Board resolved the issued in Matter of Agour, 26 I&N Dec. 566 (BIA 2015) [PDF version], holding that “adjustment of status” constitutes an “admission” for purpose of applying for a section 237(a)(1)(H) waiver.

The USCIS makes clear at 9 USCIS-PM 5.A that there are two steps to considering eligibility for a waiver. First, the applicant must show that he or she meets the statutory and regulatory requirements for a waiver. Second, the applicant must establish that he or she merits a favorable exercise of discretion. The applicant bears the burden of proving that he or she merits the favorable exercise of discretion. To this effect, the USCIS cited to Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957) [see article].

In Matter of Manchisi, 12 I&N Dec. 132 (BIA 1967) [PDF version], the Board held that an alien who was removable for having obtained an immigrant visa on the basis of a sham marriage was eligible for a waiver under the old section 241(f), which has now been replaced by section 237(a)(1)(H). Section 241(f) had required the granting of a waiver in certain cases where the alien had a qualifying relative and was otherwise eligible, making it more generous than the current 237(a)(1)(H). Although the Board overruled Matter of Manchisi in Matter of Diniz, 15 I&N Dec. 447 (BIA 1975) [PDF version], the Board reinstated Matter of Manchisi in Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978) [PDF version]. While Matter of Manchisi and Matter of Da Lomba remain valid precedent today, due to changes in the language of the old section 241(f) their continuing viability was called into question by the Sixth Circuit in Dallo v. INS, 765 F.2d 581 (6th Cir. 1985) [PDF version].

Under Matter of Matti, 19 I&N Dec. 43 (BIA 1984) [PDF version], a waiver applicant cannot rely on a fraudulent marriage in order to meet the necessary family relationship requirement.

The availability of section the 237(a)(1)(H) waiver may be affected by whether other deportability grounds apply. Under Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [see article], an alien who is charged as deportable for being inadmissible at the time of adjustment of status due to marriage fraud is not eligible for a section 237(a)(1)(H) waiver if he or she is also charged as removable under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude (CIMT), even if the CIMT is based on the underlying marriage fraud. The Matter of Tima scenario may arise in cases where the individual is convicted of a criminal violation in connection with the marriage fraud (e.g., 18 U.S.C. 1101 (1994) for making materially false statements). In Gourche v. Holder, 663 F.3d 882 (7th Cir. 882) [PDF version], the Seventh Circuit held that an alien charged as removable under section 237(a)(3)(B)(iii) for a criminal conviction for fraud in immigration documents attesting to a sham marriage was not eligible for a section 237(a)(1)(H) waiver. In general, criminal convictions for marriage fraud may lead to civil immigration charges that cannot be waived by section 237(a)(1)(H), even though the convictions may be based on the same underlying fraud that caused the inadmissibility at the time of admission or adjustment of status.

In Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995) [PDF version], the Board held that a former section 241(f)(1) waiver was not available to an alien who had procured conditional permanent resident status on the basis of a bigamous marriage, but who faced an additional charge of deportability for having failed to file for the removal of conditions on her permanent resident status. In this case, the deportability charge for the failure to remove conditions on the permanent resident status was separate and distinct from the charge that the alien was deportable at the time of entry.

However, in Matter of Fu, 23 I&N Dec. 985 (BIA 2006) [PDF version], the Board held that section 237(a)(1)(H) authorizes a waiver of removability of section 237(a)(1)(A) based on charges that the alien was inadmissible at the time of admission under section 212(a)(7)(A)(i)(I) of the INA for lack of a valid immigrant visa or entry document. This was reaffirmed as good law in Matter of Agour, 26 I&N Dec. at 574 n.12. In Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010) [PDF version], the Ninth Circuit held that an alien who was charged with deportability under 237(a)(1)(D)(i) (for having conditional permanent resident status terminated) in addition to having been inadmissible at the time of adjustment of status for marriage fraud was eligible for the section 237(a)(1)(H) waiver. It is important to note that in this case, the alien had filed for the removal of conditions on his permanent resident status and was denied, thus meaning that the same underlying fraud formed the basis of both grounds of deportability. In an unpublished decision, the Second Circuit in Muca v. Holder, 551 Fed.Appx. 604 (2d Cir. 2014) recognized Vasquez, but found Muca distinguishable in that the alien in the case sought a section 237(a)(1)(H) waiver to waive section 237(a)(1)(D)(i), but had not submitted an application for adjustment of status along with the application for the fraud waiver.

Because section 237(a)(1)(H) only waives deportability based on inadmissibility at the time of entry or adjustment of status, relief may be barred under the provision where the fraudulent marriage occurred subsequent to entry or admission under current law. In Salas-Velazquez v. INS, 34 F.3d 705 (8th Cir. 1994), the Eighth Circuit held that the former section 241(a)(1)(H) (preceded current 237(a)(1)(H)) was unavailable to an alien who had entered as a visitor, entered into a fraudulent marriage, and then sought the waiver in deportation proceedings based on a subsequent valid marriage. The reason was that the alien was not inadmissible at the time of entry but rather based on events subsequent to entry.

However, in Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) [PDF version], the Ninth Circuit held that a former section 241(f) waiver was available to waive prior marriage fraud based on a current non-fraudulent marriage. The difference between Virk and Salas-Velazuqez was that (1) the alien had initially procured permanent resident status through a fraudulent marriage; and (2) the alien was not seeking permanent resident status based on the subsequent marriage but was instead seeking relief from removal as a permanent resident.

In San Pedro v. Ashcroft, 395 F.3d 1156 (9th Cir. 2005) [PDF version], the Ninth Circuit ruled that it lacked jurisdiction to review the Board's discretionary determination that an alien who had engaged in marriage fraud did not merit a waiver under section 237(a)(1)(H). The Ninth Circuit explained that it only had jurisdiction to review whether an alien meets the threshold eligibility requirements for the waiver.

Although the purpose of section 237(a)(1)(H) is to waive deportability based on inadmissibility stemming from a fraudulent act at the time obtaining a visa or adjustment of status, the Supreme Court held in INS v. Yueh-Shaio-Yang, 519 U.S. 26 (1996) [PDF version] that negative factors relating to that initial fraudulent act may be weighed in exercising discretion against the alien. In Matter of Tijam, 22 I&N Dec. 408 (BIA 1998) [PDF version], the Board held that Immigration Judges should consider the alien's initial fraud or misrepresentation in weighing whether the alien merits the positive exercise of discretion in the form of a waiver of deportation (or removal in under current law).

Under section 237(a)(1)(H)(ii), VAWA self-petitioners do not need a qualifying relative in order to qualify for a waiver.

Cancellation of Removal

Immigration charges stemming from marriage fraud allegations do not, in and of themselves, preclude an alien from being eligible for cancellation of removal. Neither the non-permanent resident cancellation of removal provisions in section 240A(a) nor the permanent resident provisions in section 240A(b) specify “marriage fraud” as a bar. Furthermore, because cancellation of removal is not based on an immigrant visa petition, it is unaffected by the subsequent marriage bar in section 204(c).

However, there are several caveats regarding the applicability of cancellation of removal to an alien charged with marriage fraud.

The permanent resident cancellation provisions in section 240A(a) require that the alien have been a permanent resident for not less than five years, have resided in the United States for not less than seven years, and have not been convicted of an aggravated felony as defined in section 101(a)(43) of the INA. It is important to note that an aggravated felony conviction is a permanent and un-waivable bar to cancellation of removal. The aggravated felony bar may arise in certain cases involving marriage fraud schemes, especially where there are criminal charges. Whether the aggravated felony bar would be found to apply depends on the facts of a specific case. As always, it is important to note that cancellation of removal is an entirely discretionary form of relief, and the fact that an alien was involved in a fraudulent marriage scheme would weigh heavily against his or her case and likely lead to denial barring outstanding equities.

The non-permanent resident cancellation statute at section 240A(b) requires ten years of continuous physical presence and bars aliens with convictions under section 212(a)(2), 237(a)(2), and 237(a)(3). 240A(b) cancellation requires that the alien have been a person of “good moral character” as defined in section 101(f). Furthermore, the alien must establish that his or her removal would result in “exceptional and extremely unusual hardship” to his or her U.S. citizen or permanent resident spouse, parent, or child. The hardship requirement could not be met based on a fraudulent marriage. We discuss extreme hardship generally in our full article on the issue [see article] and in our article on cancellation of removal under section 240A(b) [see article]. While an alien who is facing removal due to circumstances involving marriage fraud is not barred from section 240A(b) cancellation, he or she would face a daunting challenge in establishing that he or she qualifies for and merits relief.

Firstly, in certain cases, the section 101(f)(6) good moral character bar for providing false testimony for the purpose of obtaining immigration benefits comes into play in many marriage fraud case. Provided the marriage fraud occurs within the 10-year statutory period for which good moral character must be established, an alien would be ineligible for cancellation. Second, section 101(f)(7) bars the establishment of good moral character for an alien who was incarcerated for a period of 180 days or more during the statutory period, and an aggravated felony conviction under section 101(a)(43) is a also a permanent bar to good moral character. Finally, offenses described in the section 212(a)(2) inadmissibility provisions bar eligibility for cancellation of removal, and any conviction involving a marriage fraud scheme would be liable to be considered a crime involving moral turpitude, which falls under section 212(a)(2). Furthermore, the alien must deal with likely inadmissibility charges under 212(a)(6)(C).

Even if an alien is not barred from section 240A(b) relief, commission of marriage fraud would weigh heavily against his or her credibility in the eyes of an immigration judge. The individual would certainly need to present outstanding equities in order to merit consideration for relief.

Under section 240A(b)(2), a battered spouse may seek special rule cancellation of removal with less stringent requirements for continuous physical presence (three years) and the statutory period for establishing good moral character (same). However, the marriage must have been bona fide when entered into in order to qualify.

Cases

In Watkins v. INS, 63 F.3d 844 (9th Cir. 1995) [PDF version], the Ninth Circuit found that the BIA abused its discretion in denying a motion to reopen immigration proceedings by an applicant who had been found to have previously entered into a sham marriage and who was seeking suspension of deportation (the form of relief preceding cancellation of removal) under the rules in effect at the time. In this case, the individual had established prima facie (on the face) eligibility for suspension of deportation. The Board denied the motion to reopen as a matter of discretion. However, the Ninth Circuit found that the Board had not considered all relevant factors concerning extreme hardship to the individual's spouse and children (a different spouse than the one who was a party in the sham marriage). However, in Salas-Velazquez v. INS, 34 F.3d 705 (8th Cir. 1994), the Eighth Circuit found the Board did not abuse its discretion in denying suspension of deportation relief where the applicant's then-spouse knew that he was deportable prior to the marriage.

In Reynoso v. Holder, 711 F.3d 199 (1st Cir. 2013) [PDF version], the First Circuit denied an application for section 240A(b) cancellation where it determined that the applicant could not establish good moral character because she had provided false sworn testimony regarding the duration of her relationship with her husband, triggering the application of section 101(f)(6). The bar applied even though the false testimony was not necessarily material. The First Circuit ruled similarly in Akwasi Agyei v. Holder, 729 F.3d 6 (1st Cir. 2013) [PDF version].

Other Forms of Relief

As we noted, even where the section 204(c) bar applies, it only applies to principal beneficiaries of family- and employment-based immigrant visa petitions. All other forms of relief and benefits are not barred by section 204(c). For example, an applicant for asylum or refugee adjustment would be eligible for a section 209(c) waiver. ViAWA protections may be available depending on the facts of the case. Marriage fraud also does not bar seeking permanent residence through the registry provisions, although there is a good moral character requirement for registry benefits. It is important to remember that even if something is not barred, a finding of marriage fraud will make it difficult, if not impossible, for most requests to be approved.

Conclusion

An alien who is facing legal charges regarding marriage fraud should consult with an experienced immigration attorney immediately. An attorney may assess the case and determine the best path to proceed. Although relief may be available in limited cases, individuals should never assume that they will be able to recover from a finding of marriage fraud through the immigration system. It cannot be emphasized enough that alien should never even endeavor to enter into a marriage for the sole purpose of procuring immigration benefits.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 136-137, 1087, 1103-05, 1132, Print. Treatises & Primers.

Stickney, Elisabeth S. Immigration Law & Family. 2017 ed. June 2017 Update. Sections 4:33 and 12:41. Retrieved from next.westlaw.com (Sep. 7, 2017)