2. The Process of Receiving Benefits through Marriage
3. Discovery, Referral and Investigation of Marriage Fraud
4. Prosecuting Marriage Fraud
5. The Elemental Breakdown of 8 U.S.C § 1325(c)
[T]he government must prove more than the defendant’s knowledge of the facts that constitute the offense, as is required by a statute punishing knowing violations of the law. However, in showing that the defendant knew his conduct was unlawful, the government need not prove that the defendant knew the specific law being violated51.
6. A Word on Spousal Privilege
7.1. The Administrative Process
7.2. The Substantive Charge of Marriage Fraud
7.3. Overall Effects and Application
Conflicts of Interest
References and Notes
- María Pabón López. “A Tale of Two Systems: Analyzing the Treatment of Noncitizen Families in State Family Law Systems and Under the Immigration System.” Available online: http://ssrn.com/abstract=1211262 (accessed on 6 January 2016).
- Official Website of the United States Citizenship and Immigration Services. “I-130, Petition for Alien Relative. ” Available online: http://www.uscis.gov/I-130 (accessed on 22 February 2016).
- Official Website of the US Immigration and Customs Enforcement. “Identity and Benefit Fraud. ” Available online: http://www.ice.gov/document-benefit-fraud/ (accessed on 22 February 2016).
- Official Website of the Department of Homeland Security. “Department of Homeland Security Office of Inspector General, Review of the USCIS Benefit Fraud Referral Process (Redacted-Revised). ” Available online: https://www.oig.dhs.gov/assets/Mgmt/OIGr_08-09_Apr08.pdf (accessed on 22 February 2016).
- Marcel de Armas. “For Richer or Poorer or Any Other Reason: Adjudicating Immigration Marriage Fraud Cases within the Scope of the Constitution.” Journal of Gender, Social Policy & the Law 15 (2006): 743. [Google Scholar]
- Google.com/news—Keyword search with the terms “marriage fraud” with the date range of 1 January 2015–22 February 2016 produced several results including this: December 2011 the New York US Attorney’s office for the Southern District arrested over twenty people who were involved with the smuggling of Eastern European women into the US for purposes of working them as adult entertainers. These women were made legal residents by arranged marriages with pre-selected US citizens. Available online: http://www.cnn.com/2011/11/30/justice/new-york-strip-club-charges/ (accessed on 22 February 2016).
- 18 U.S.C. § 1154 (2015) and 8 U.S.C. § 1151(b) (2015) (stating that certain aliens are not subject to a numerical quota and that one such category of aliens are foreign spouses of US).
- 28 U.S.C. § 1154(a)(II)
- 322 C.F.R. § 42.21 (2016) (stating “an alien who is a spouse or child of a United States citizen, or a parent of a US citizen at least 21 years of age, shall be classified as an immediate relative under INA § 201(b) (2012)”).
- 48 U.S.C. § 1154(a) and 8 U.S.C. § 1153(a)(2) (2015) (stating that a LPR may petition for his or her spouse, but that such petition is subject to the numerical visa allocations designated by Congress for that preference category). For a more in-depth treatment of family immigration categories, and rights of noncitizens in the US, please read .
- 5See . Form I-130 is used to establish general eligibility with the USCIS for receiving an immigration benefit based on a familial relationship.
- 6USCIS instructions to form I-130 state that some documents to prove the relationship exists are: marriage certificate, joint ownership of property, children of the marriage, etc.
- 78 U.S.C. § 1186a (2015).
- 88 U.S.C. § 1186a (c)(1)(B).
- 98 U.S.C. § 1186a (c)(1)(B).
- 10Pub. L. No. 99 639, 100 Stat. 3537 (1986).
- 11Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975).
- 12INA § 216(c)(4) (2011), 8 U.S.C. § 1186a(c)(4) (2011).
- 138 U.S.C. § 1430 (2015).
- 148 U.S.C. § 1325(c) (2015).
- 15United States Government Accountability Office—Report to Congressional Requesters: Immigration Benefits—Additional Controls and Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud, GAO-06-259 (March 2006) (evaluating USCIS’ efforts to control and eradicate document fraud as well as a recommendation for potential safeguards that should be implemented by USCIS).
- 16Department of Homeland Security Office of Inspector General, Review of the USCIS Benefit Fraud Referral Process (Redacted-Revised), OIG-08-09, 3 (April 2008) [hereinafter “OIG 08-09”]. See  for website link (response to congressional inquiry on the fraud detection and referral process by the Office of Inspector General (stating “articulable fraud encompasses any application with concrete evidence that leads the adjudicator to suspect fraud. This can include demeanor, contradictory statements on material facts, atypical or boilerplate applications, suspected fraudulent documents, or genuine documents that appear to have been obtained through misrepresentation”)).
- 17OIG 08-09 at 1. FDNS seeks to “(1) Obtain from adjudicators all petitions with objective fraud indicators, or articulable fraud, and refer these petitions to United States Immigration and Customs Enforcement (ICE) Office of Investigations for review; (2) develop a database to enhance FDNS’ ability to analyze fraud; (3) track all petitions with articulable fraud indicators from referral to completion; and (4) identify and analyze fraud patterns and trends using data mining and pattern recognition to search new immigration petitions against known fraud indicators.”.
- 18OIG 08-09 at 8.
- 19OIG 08-09 at 8.
- 20US v. Ortiz-Mendez, 634 F.3d 837, 838 (5th Cir. 2011).
- 21OIG 08-09 at 10 (citing an ICE survey).
- 2218 U.S.C. § 1546 (2015).
- 23See US v. Islam, 481 F.3d 1125 (10th Cir. 2005); US v. Chowdhury, 169 F.3d 402 (6th Cir. 1999); US v. Ortiz-Mendez, 634 F.3d 837 (5th Cir. 2011); US v. Darif, 446 F.3d 701 (7th Cir. 2006).
- 24See Generally Chowdhury, Ortiz-Mendez, and Darif. In each case, the US citizen spouse offered testimony at trial against the alien spouse (defendant).
- 25See Islam, 481 F.3d 1125. In a scheme for marriage fraud, Crystal Mae Porter-Jamil organized numerous marriages between Pakistani males and US citizen females. Defendant was from New York and the spouse was from Kansas. After filing several bonafides with the USCIS, including joint tax returns, bank account statement and a cell phone bill, the defendant was charged with violating 8 U.S.C. § 1325(c).
- 26See Islam, 481 F.3d 1128.
- 27See 8 U.S.C § 1325(c) (the statutory language is “any individual” which includes the alien spouse or the US citizen spouse).
- 28Islam, 418 F.3d at 1128.
- 29See US v. Rojas, 349 Fed. Appx. 467 (2009); US v. Magee, 315 Fed. Appx. 882 (2009) (in both cases, neither defendants dispute the first element of knowingly entering into a marriage. The respective courts clearly point this out in both cases as satisfying that element).
- 30US v. Elzahabi, 517 F. Supp.2d 1121, 1124 (D. Minn. 2007) (stating that formal validity (i.e., marriage license, state licensure requirements) of defendant’s marriage is immaterial to marriage fraud). See also, US v. Diogo, 320 F.2d 898, 905 (2nd Cir. 1963).
- 31Ortiz-Mendez, 634 F.3d 837.
- 32Ortiz-Mendez, 634 F.3d 839.
- 33Ortiz-Mendez, 634 F.3d 839.
- 34 (citing from US v. Darif, 466 F.3d 701, 710 specifically discussing the two tests that have caused the split in the circuits).
- 35US v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002).
- 36Islam, 418 F.3d. at 1127.
- 37Islam, 418 F.3d. at 1128.
- 38Orellana-Blanco, 294 F.3d 1143. Bohem testified at trial that she only met the defendant on the day of the wedding.
- 39Darif, 466 F.3d 701.
- 40Darif, 466 F.3d 704.
- 41Chowdhury, 169 F.3d at 405.
- 42US v. Dimitrova, 266 Fed. Appx. 486, 488 (7th Cir. 2008). The defendant told officials that her father paid the US citizen $10,000 to marry her.
- 43US v. Dimitrova, 266 Fed. Appx. 486, 487 (7th Cir. 2008).
- 44Islam, 418 F.3d at 1129.
- 45Orlleana-Blanco, 294 F.3d at 1145.
- 46Chowdhury, 169 F.3d at 404.
- 47US v. Magee, 315 Fed. Appx. 882 (11th Cir. 2009).
- 48US v. Magee, 315 Fed. Appx. 882, 884 (11th Cir. 2009).
- 49Chowdhury, 169 F.3d at 404-05.
- 50Ortiz-Mendez, 634 F.3d at 838.
- 51Chowdhury, 169 F.3d at 406 citing from Bryan v. United States, 524 US 184 (1998).
- 52Chowdhury, 169 F.3d at 407.
- 53Islam, 418 F.3d at 1128, citing from Chowdhury, 169 F.3d at 407.
- 54Islam, 418 F.3d at 1128, citing from Chowdhury, 169 F.3d at 407.
- 55Islam, 418 F.3dat 1129.
- 56US v. Yang, 603 F.3d 1024 (8th Cir. 2010).
- 57Trammel v. US, 445 US 40 (1980).
- 58Trammel v. US, 445 US 40 (1980).
- 59Darif, 446 F.3d at 706.
- 60Darif, 446 F.3d at 706.
- 61Darif, 446 F.3d at 705. Citing from US v. Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002). Emphasis on the word “valid” added.
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