Family Reunification INA §§ 217, 204(a)(2),(c),(g), 245(d),(e)

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    1. 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Dabaghian v. Civiletti 9th Cir (1975): DOJ rescinded P’s LPR status b/c his marriage to an American citizen was in its final stages with divorce imminent.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))