An anxious and worried couple consulted with me recently. The spouse is American and the Husband Filipino who we will call Mr. M.
They presented me with a decision from the local Immigration office intending to deny their Marriage Adjustment Petition. They were given 30 days to file an appeal. The issue in this case was that the immigration officer determined that there was fraud in this case, and hence Mr. M doesn’t qualify for the conditional Green Card. The couple explained that the officer never looked at any of their documents. Rather, she interviewed them separately and determined her conclusions based on the answers they provided.
After reviewing the decision, it was clear that the officer never even looked at the numerous documents the couple collected together. She also ignored the medical condition that the US Citizen spouse was under. The wife suffered from a serious heart condition that affected her memory ability to communicate clearly.
We immediately got on top of the case. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493. Evidence to be considered by the reviewer officer includes evidence of combined financial assets and liabilities, length of time of cohabitation, and other relevant evidence. Chand v. INS, 1997 U.S. LEXIS 19141
As proof of the validity of Mr. M’s marriage, affidavits from Mr. M, Mrs. M and others who have known the couple during the course of their marriage. In order to dismiss this testamentary evidence, we argued that a finding as to the adverse credibility of each affiant must be made. See Duangnin v. Ashcroft, 121 Fed. Appx. 682, 683.
We also argued that even if the reviewing Immigration Judge concludes that fraud did take place, it is within his or her discretion to find that Mr. M committed general immigration fraud under INA §212(a)(6)(c) rather than a sham marriage under INA §204(c). See Coelho v. Gonzales, 2006 U.S. App. LEXIS 16847 (1st Cir. 2006). Mr. M would then be eligible for a waiver of inadmissibility under INA §212(i) based on the extreme and unusual hardship Mrs. M would face if her husband was deported.
We submitted a thick file with supporting evidence of life together as well as proof of the wife’s medical condition. I have also pointed in the brief that the officer based her decision soley on the interview she conducted and without looking at a single piece of evidence.
The case was approved within a few weeks, Mr. M got his Green Card thereafter.!!!!