Marriage and divorce is understood differently across various cultures. That leads to different laws regarding marriage and divorce. We last touched on this subject back in 2010 in our Blawg post "A Marriage Is A Marriage, But Is A Divorce A Divorce?" Since then, the interplay of foreign marital law and US immigration law has continued to complicate matters for people who simplistically thought they could just file a petition and bring their new spouse over.

One issue that came up recently is the US law treatment at of "revocable divorces" under shari'ah, or Islamic law. Shari'ah provides a type of divorce called a "revocable divorce" (talaq raj'ee) where a husband may divorce his wife, but if they resume marital relations within a three-month period (known as the iddah) thereafter, the pronouncement of divorce is revoked and the husband and wife remain married. This can only be done twice in the life of a marriage; if it happens a third time, the divorce is final and irrevocable.

The divorce may also become irrevocable (and thereby 'finalized') if the husband and wifes do not resume marital relations during the iddah. Under US law, parties must be legally free to marry each other order to apply for immigration benefits such as a fiancé visa (K-1) or spousal visa. A revocable divorce, because it is not final and may yet permit the marriage to continue, will not be recognized by US law as permitting the parties to remarry. 

The law on irrevocable termination of a marriage (talaq baa'in) is more complex. It is different when the wife initiates her rigth to divorce (khula') and different when the husband pronounces a clear intent to divorce and thereafter does not resume marital relations during the 'iddah. However, for US immigration law purposes, the revocable divorce that becomes final when the parties do not resume marital relations during the iddah will be sufficient to be recognized as a divorce that permits remarriage. 

Practically, then, if the only proof of divorce a person has is a decree of revocable divorce, there must be some additional evidence that the parties did not resume marital relations during the iddah, or else any subsequent immigration petition filed by that person will be denied. Not because the parties are still legally married - but because of a failure of proof that the prior marriage was in fact dissolved.

Ignore this at your own peril. Don't find out the hard way, or you'll have a lot of explaining to do to your new spouse.
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If you don't like a decision you get from USCIS or an immigration judge in removal proceedings, you can (sometimes) appeal your case to the Board of Immigration Appeals (BIA.) Filings with the BIA are governed by the BIA practice manual, and every once in a while there are small updates made. 

Last update was on April 26, 2016 - here is a table of the changes made:

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On April 29, 2016,  177 children’s rights, civil rights, human rights, faith-based, and immigrants’ rights organizations and legal service providers sent a letter to Attorney General Loretta Lynch a letter to condemn the practice of detaining and deporting children, and demanding that every child facing deportation is given a lawyer.

We cannot continue to pretend that immigration detention is not incarceration. In fact, it's worse - because we take liberties away from people who did not commit a crime - subjecting them to a legal process against which they have no hope to defend themselves. To add insult to injury, an immigration judge (in his official capacity) actually said 3-year olds can learn immigration law.

We are a country that jails little kids. We call the jails "family residential centers." We allow companies to run them for profit. 

This is a blight on our society. We point fingers at the despotic regimes around the world, creating what we call "refugee crises" - but ignore the crisis on our own border.  We tout the values of our own adversarial justice system, but even as racial disparity in arrests and incarceration persist in the criminal justice system, the immigration machine continues to mete out criminal punishments without corresponding safeguards.

It's time to at least give children a lawyer. Many (perhaps as many as 80%) actually do have the right to stay in the United States under our laws. That they are denied a meaningful opportunity to present their claims is manifest injustice.

Read the letter here.

"Children in Jail" courtesy Filipo Cerulo.