Bona Fide Marriage Exemption
Non-citizens who marry U.S. citizens or lawful permanent residents while in removal proceedings must show by clear and convincing evidence that the marriage was entered into in good faith. INA § 245(e)(3). What is commonly called, “the bona fide marriage exemption” must be requested in writing and submitted with Form I-130. 8 C.F.R. § 204.2(a)(1)(iii)(A).The request must state the reason for seeking the exemption, and must be supported by documentary evidence establishing eligibility for the exemption. Id. A sentence in the cover letter such as, “the beneficiary, who is in removal proceedings, requests the bona fide marriage exemption based on the enclosed documents which show by clear and convincing evidence that the marriage is bona fide,” will suffice to meet the requirement under 8 C.F.R. § 204.2(a)(1)(iii)(A).
You must be prepared to deal with the bona fide marriage exemption very early in your removal case. I must emphasize the necessity for you, the couple, to document your relationship.
Evidence of the relationship will be critical to the removal proceedings and to obtaining approval of the visa petition. You should keep all documents that show both names in order to prepare and file the visa petition.
Documents such as the following should be included with the visa petition you must file with USCIS: wedding photos; pictures of the couple in a variety of settings and times; joint utility bills; leases or deeds to property; car insurance or other insurance bills or policies with both names; driver’s licenses with the same address; health insurance cards; joint phone bills for land lines or cellular phones; joint income tax returns; joint bank statements; birth certificates for any children; letters from friends and family members; and any other evidence to show the couple shares assets and liabilities.
Finally, don’t forget the use of publically accessible websites such as Facebook to ensure that you are not posting information that contradicts the documents and testimony they provide to either USCIS or an immigration judge. Often people say things about themselves on the Internet, yet state contradictory things to the USCIS in interviews. USCIS uses publically accessible information during investigations of visa petitions.
You should file a complete copy of the visa petition, as filed with USCIS, with the immigration court in connection with a motion to continue the removal proceedings to allow USCIS time to adjudicate the petition. Some Immigration judges will hold hearings to determine the bona fides of the marriage before granting a continuance of the removal proceedings for “good cause.” Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
You as petitioners and beneficiaries must be extensively prepared for either the USCIS interview or the hearing before the Immigration Judge. If the USCIS denies the petition, the beneficiary in removal proceedings must seek other relief from removal or leave the United States. Thus, success at the I-130 stage for non-citizens in removal proceedings is critical to their future in this country.
Options if the Visa Petition is Denied
If USCIS denies the visa petition, there are two primary options if the clients wish to proceed- refile the petition, or appeal to the BIA. USCIS will generally adjudicate a newly filed visa petition faster than the BIA will adjudicate an appeal, and a new petition will allow for the introduction of new evidence as well as a second interview. The main drawback, however, is that new petitions are usually filed with the same office which already found the petitioner and beneficiary do not have a bona fide marriage. Therefore, a good suggestion is to assess whether a new petition will be appreciably better than what was submitted previously. Is there new evidence, or perhaps was the visa petition poorly prepared? If so, then perhaps a new filing is advisable. If, however, the new petition would be largely duplicative of what was already denied, then an appeal is likely a better option. It is vital to keep in mind that the Board of Immigration Appeals (BIA) handles visa petition appeals differently than removal cases. The notice of appeal is filed with the USCIS office that issued the denial, not the BIA itself. 8 C.F.R. § 1003.3(a)(2). Also, the Notice of Appeal should be accompanied by a Notice of Appearance for the petitioner, not the beneficiary in removal proceedings. Additionally, regulations require both sides to file the brief be filed within 21 days, unless USCIS specifies a shorter time, again with the briefs sent to USCIS, not the BIA. 8 C.F.R. § 1003.3(c)(2). After briefing, the Service can either reopen the case on its own motion, or it should forward the briefs and record to the BIA for adjudication.
Unfortunately, many USCIS offices do not file briefs in time, and may not promptly forward the record to the BIA either. This can be especially common for beneficiaries in removal proceedings, where ICE may have the A file instead of USCIS. You should therefore be careful to monitor the status of any BIA appeals filed with USCIS. USCIS should issue a transfer notice if it forwards the record. Additionally, you can call the BIA clerk’s office to confirm if they have the appeal. If the BIA denies the appeal, it may be possible to seek judicial review in district court. This is a remedy which is generally rare, and beyond the scope of this article. Nonetheless, it is an option which you should keep in mind.
Comments or questions are welcome.