The case against speaking

Regarding Petitions to Remove Conditions in Tampa.

I am having my clients assert their 5th amendment right in more cases before Tampa CIS. It is clear to me that in many cases, CIS in Tampa is more concerned about proving fraud they believe to be there than in finding out whether or not a couple was really married.

Since I became a lawyer in 1996 I have advised my clients to cooperate with INS and then CIS requests for information and documents. But previously the requests were always reasonable, and they went to the heart of the issue of the case -- should the person before CIS get this benefit or not?

After 9/11, things started to change, and the CIS attitude towards the aliens changed -- for the worse. The individual officers did what they could, but it appeared that high up in the command structure, someone was making CIS get tough. Fraud became a huge deal (when it was not before -- it was just treated like fraud) and finding marriage fraud became a way of distinguishing oneself at CIS if one were ambitious.

The requests for evidence became more and more obnoxious and personal, and CIS began to believe that an absence of evidence proved fraud. Worst of all, the legal presumption an alien is entitled to after being in a marriage for two years after their green card is issued -- the presumption that the marriage was real -- has been ignored at the CIS level.

Marriage fraud charges were thrown around without much cause -- I had more than a few cases go to court where they were thrown out for lacking evidence. 751s are routinely denied in Tampa, and are then approved easily at court, where the rule of law still prevails.

CIS appears to think that a lack of evidence equals fraud, and it appears that now they use their interviews as chances to support their cases, not a chance to hear my clients. My clients deserve to be heard, and will not speak again until and unless they are heard.

Dragon helps me out!

Forgive me for being absent so long, my friends. It is been a crazy couple of months.

I recently purchased the Dragon voice-recognition software, and I could not be more pleased. This software can even determine what I am saying, which is a step up from our last attempt at voice-recognition software.

New things in immigration:

TPS for Haitians - it's about time that the nice people from Haiti got a break. It is too bad that it took a devastating earthquake to give them that break. This is great news for those from Haiti facing deportation, as this process will stop for a while.

CRI -- comprehensive immigration reform has been presented and is pending in Congress and the Senate. I certainly hope the president is more successful with this endeavor than he was with healthcare reform.

In recent cases, I have won quite a few 240 A(b) applications for my clients, and although the government is starting to appeal every loss, we are undefeated on appeals. You may remember these cases involve non-permanent residents who have been in the US for more than 10 years, who can show exceptional and extremely unusual hardship to their qualifying US citizen or lawful permanent relatives.

At Citizenship and Immigration Services, they remain very leery of every marriage case, and the decisions on petitions to remove conditions remain as baffling as ever. I saw a decision recently, during a consult, where the immigration service officer called the US citizen wife a lesbian, and said this was why he could not approve the case. If your petition to remove conditions has been denied, do not feel special. Too many good people are having their lives disrupted and their bank accounts destroyed because of poor decisions from the local office.

I hope to write more often in the future. Sorry I have been absent for so long.

Neil

I-751 nonsense

People who receive permanent residence based on a new marriage receive a green card good for two years. Within 90 days of the end of the two year period, the couple must file a form I-751, a petition to remove the conditions upon residence.

It is a fairly simple thing to file if the couple is still together. You file proof that the marriage continues, and CIS will either grant the permanent green card or call you in for an interview.

It is a fairly simple thing to file if the couple is divorced. The alien needs to file proof that the marriage was real, and CIS will most likely call the alien in for an interview.

BEWARE -- if you divorce within two years of gaining your lawful permanent residency, CIS may presume that your marriage was fake, and the burden will be entirely on you to show that it was real. If you divorce more than two years after you got your residency, it is presumed that your marriage is real, and the burden is on the government to show that it was false if they want to take your green card away.

The problem with I-751s has always been that CIS does not know what to do when you file as a married person and then divorce prior to your I-751 interview. Tampa CIS's view has been recently that your joint I-751 must be denied before you can then file a new I-751 on your own. Now a memo from CIS HQ (Neufeld, Acting Assoc. Director) shows that a joint petition may be changed to a waiver petition by request of the alien. This commonsense view is long overdue, and actually returns CIS to the policy INS had from 1999 - 2002 (or thereabouts).

This change change change would be comical if it did not affect so many people's lives. I have had clients who filed three separate I-751s before CIS would give them a decision on their marriage. I also know too many who never knew their joint petition was denied because the notice denying the petition and the notice sending them to Immigration Court was sent to the marital address (where they no longer lived). They learned about the denial when ICE came to arrest them (because THEN CIS knew where they lived).


Can we not have a form that allows married couples and unmarried aliens to petition for removal of conditions, that does not have all these loopholes and "gotcha's"? It should be enough to keep the green card if an alien, married or unmarried, can prove that the marriage was real.

The new memo helps some, but we really need a new form.