Original Blawg Post follows:
People get married for many reasons. Love, wanting to start a family, convenience, arranged by parents, etc. But what if getting a green card is part of the decision to get married? At what point does the marriage become "fraudulent"?
Marriage fraud - known commonly as a "sham marriage" or "marriage of convenience" or "green card marriage" or "fake marriage" - is such a large problem, and has been going on for so long, you would think the answer to that question would have long been settled.
It hasn't, and it isn't.
We've blogged about what to do when a marriage is shaky. But today's topic is marriage fraud.
Marriage fraud has been a favorite option of the fraudsters who want to gain permanent residency quickly. In our experience, contractual fraud is the most common type: alien meets US citizen, agree to marry, get green card, and then divorce. Sometimes the alien and the US citizen are introduced via a marriage "broker." Other times they are friends, and may even date each other before tying the knot. Sometimes the US citizen wants to "help" the alien who is facing deportation.
There are two main laws concerning marriage fraud. INA 204(c) states that no visa petition may be approved under INA §204 if the “alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws…”
That means if an alien entered into a fraudulent marriage, no one else can ever sponsor him for anything.
Secondly, there's the federal statute, 8 U.S.C. 1325(c) states that "any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both."
Note the language in each one: "enters into a marriage for the purpose of evading [any provision] of the immigration laws."
The first law, Section 204(c) is an agency, administrative remedy. In other words, it's not a crime because you won't go to jail if USCIS makes a finding under 204(c). The second law, Section 1325(c), on the other hand, is a felony and you can go to jail if a federal prosecutor can prove you violated it. So it is much more serious an offense.
Compare the language in each one and a few differences come to light.
- 204(c) does not explicitly say that the act of entering into the marriage had to be known to be fraudulent; 1325(c) does.
- 204(c) says "evading the immigration laws" whereas 1325(c) interdicts evading "any provision" of the immigration laws.
Yet there are quite a few similarities. As in, similarly deficient:
- Both talk about "the purpose" as if the purpose for which the marriage was entered into is singular. Which, logically, would mean that if the only reason for entering the marriage is to get a green card, it would be considered fraudulent. But if getting a green card was only one reason for the marriage, and there were other, legitimate reasons for the marriage, then it ostensibly should not be considered fraudulent. But this is not always how it's understood. Some courts say that if Congress meant to criminalize a marriage only if the only reason was to procure a visa, it would have said "sole" or "only" purpose, not simply "the" purpose. Other courts say "the purpose" is singular and so is "sole purpose" - therefore if there is a bona fide intent, it's not fraud. Who's right?
- Under prevailing agency regulations, USCIS or the immigration judge has to have "substantial and probative" evidence of marriage fraud in order to invoke the 204(c) bar. That is a standard that applies nationally. But for 1325(c), depending on where you are, the government might not have to prove anything except that you intended to evade the immigration law. So the end result is there are some marriages that would not lead to a finding under 204(c) but could be prosecuted criminally under 1325(c)! This was never Congressional intent.
- The concept of a fraudulent marriage: Consider a young unmarried couple, one is a citizen and the other on a valid F-1 student visa. They've been dating for a few months, and love each other, but although they spent a lot of time together, they do not yet live together. Then the foreign national's father, who was paying his tuition, passes away. He is forced to drop out of school, and falls out of status. His US citizen girlfriend is horrified at the prospect of losing her boyfriend whom she cares for very much. So they decide to get married and file for a green card. They may or may not have gotten married were it not for the immigration problem, but they do care about each other and had no plans to break up. They do intend to live together, even establish a life together, but not necessarily "till death do us part." Have they committed marriage fraud? Arguably, yes. They married because she did not want him deported. Of course, they also loved each other and wanted to build a life with each other, but the decision to actually get married was hastened due to the immigration problems. Now, a US attorney might opt not to prosecute criminally on these facts, but the fact remains that the way the law is written, they could be prosecuted. If you read the congressional committee reports on the Immigration Marriage Fraud Amendments (IMFA) of 1986, it was never Congress' intent to punish a couple like this hypothetical one, but the way the law was written, they could be.
The fact remains - people get married for many reasons, not all of which are clear. And it's precisely because marriage is a personal decision that it needs to be as free as possible from state regulation. The fact that a legal marriage is itself a create of regulation is of little import: what is being protected, and why marriage is a fundamental constitutional right - is that it is a nearly universally recognized building block of society. It transcends age, culture, language, time. Any law that not only implicates this fundamental right, but criminalizes conduct constituting exercise of that fundamental right - must be subjected to the strictest of judicial scrutiny to ensure it passes constitutional muster.
While 204(c) might take refuge in the stalwart (but subsiding!) plenary power doctrine, statutes like 1325(c) cannot be insulated from judicial review. Especially when they are criminal statutes. Especially when they implicate a fundamental right. And especially when they don't clearly indicate what they're criminalizing!
The government rightly and justifiably has to detect and deter marriage fraud. But it is respectfully submitted that the permanent and powerful 204(c) bar - which almost always leads to deportation - provides sufficient deterrent protection. A criminal conviction for 1325(c) rarely results in a lengthy prison sentence, and moreover the criminal aspect should be reserved for those who broker fake marriages, not the actual participants. Criminal prosecution for marriage fraud overreaches. It provides little deterrent effect compared to removal proceedings and an order of removal. Basically, 1325(c) adds nothing to the mix. As such, it's hard to justify such excessive entanglement of the state in matters of marriage.