FACTS:

In 2011, a client applied for US Citizenship after being admitted to the US in 1999 based on marriage to a US Citizen. At his naturalization interview, USCIS officers asked the client about his prior marriage upon which his “green card” was granted.  The client responded that he had separated from his wife before arriving in the U.S. – indicating to USCIS that the marriage was not “genuine”.  Although USCIS is required to render a decision on a citizenship application no more than 120 days from the N-400 interview, USICS took almost 3 years to render a decision – finally denying naturalization.

Because USCIS believed the client had committed marriage fraud, they referred him to immigration court (issuing what is called a “Notice to Appear”).  After another five years (in late 2019) USCIS finally scheduled this client for an initial Master Calendar Hearing (a hearing before the US Immigration Court).  At this point, the client retained our services to assist with this case.

USCIS had argued that the client’s marriage was fraudulent and sought to rely on his testimony given at the interview in support of this charge of removability.

THE LAW:

A person seeking naturalization must meet some basic requirements including:

• Be at least 18 years old at the time of filing Form N-400, Application for Naturalization.
• Be a permanent resident (have a “Green Card”) for at least 5 years.
• Show that you have lived for at least 3 months in the state or USCIS district where you apply.
• Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400.
• Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400.
• Be able to read, write, and speak basic English.
• Have a basic understanding of U.S. history and government (civics).
• Be a person of good moral character.
• Demonstrate an attachment to the principles and ideals of the U.S. Constitution.

In removal proceedings (before a court), DHS has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable. Woodby v. INS, 385 U.S. 276 (1966) (the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence). This means that no decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence. INA § 240(c)(3)(A); 8 CFR § 1240.8(a); Kwong Hai Chew v. Colding, 344 U.S. 590 (1953).

The government may deport or exclude “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States.” 8 U.S.C. § 1182(a)(6)(C)(i). This statute requires that the government prove by clear and convincing evidence four things: (1) the person misrepresented or concealed some fact; (2) the person did so willfully; (3) the fact was material; and (4) the misrepresentation resulted in the person obtaining a visa, documentation or entry into this country. Kungys v. United States,485 U.S. 759, 767 (1988).

Courts have long held that misrepresentations under this section must be both “material” and “willful”. Courts have found that the government cannot carry its burden to prove willful misrepresentation through a respondent’s answers to ambiguous questions.

The test for determining whether a marriage was fraudulent is to examine the intent of the parties at the time of the marriage.  Lutwak v. U.S., 344 US 604 (1954); Agyeman v. INS, 296 F.3d 871, 883 (9th Cir. 2002); Yohannes v. Holder, 585 F.3d 402 (8th Cir. 2009)(“central issue is whether couple intended to establish a life together at the time they were married”).

THE RESULT:

Knowing the law and standing up for your right to become a US Citizen is essential. in this case, USCIS had taken more than 8 years to try and finally place the client in removal proceedings – an extremely long and difficult time to be without a decision and have your life on hold.

After being retained, we examined the evidence and determined that a strong position was warranted given the lack of evidence presented by DHS. Therefore, our office determined that the best course of action was to challenge the finding of deportability through a Motion to Terminate.

After oral arguments and a carefully written and researched Motion to Terminate, we were able to convince the Court that DHS had not presented sufficient evidence to support their charge of deportability. The Judge Terminated proceedings, allowing the client to move on with their life. This result was obtained less than a year after hiring Millerlawdc, PLLC and thus ending a long and stressful period of the client’s life.

DISCLAIMER: All Case Results published here depend on specific facts and legal issues unique to the case. It is impossible to guarantee any results.