How things come back to bote you in the butt.....

[BigJoe5]

How things come back to bite you in the butt.....

From the DOJ Office of Immigration Litigation (OIL) August 2011 edition of Immigration Litigation Bulletin:

Eastern District Of Virginia Grants Summary Judgment To Government In De Novo Naturalization Proceeding After Finding Alien Not Lawfully Admitted

In Nesari v. Taylor, __ F.Supp.2d __, 2011 WL 3586489 (E.D.Va. August 11, 2011) (Brinkema, J.), the district court granted the government’s motion for summary judgment and denied the plaintiff’s application for naturalization under 8 U.S.C. § 1421(c). The court determined that plaintiff entered the United States on an erroneously granted fiancé visa, as plaintiff had not satisfied the statute’s and regulation’s prerequisite requirement that he meet his fiancée in person prior to issuance of the visa.

Moreover, after concluding that plaintiff failed to carry his burden of demonstrating that he qualified for an exemption, the court determined that plaintiff’s visa was void ab initio and conferred no lawful status. Because the plaintiff was not lawfully admitted in accordance with applicable
law, the court further determined that he was statutorily ineligible to naturalize.

 

[sanjoseaug20]

Read the judgement document, plain case of marriage fraud. However, given the time and energy spent by the government to defend this, I wonder should they not make the requirements for entry into USA (whichever visa) even harder? For some people it is just too easy to swear that they are honest and there is no follow up to verify it. DNA tested children or infertility test at a CIS facility should be a requirement for marriage based naturalization (I know I am going extreme with rhetoric).

 

[Jackolantern]

So does he keep his green card? I see no indication of rescission being initiated in the 5 years since green card issuance; he was in removal based on I-751 denial, not an erroneous green card. And he eventually got the I-751 waiver approved in court. So at least he keeps the green card, apparently.

While I don't particularly have sympathy for this guy, it would be very unsettling if the green card is subject to potential revocation forever based on a USCIS error that has become impossible to correct. If the consulate told him to come back with proof of meeting has fiancee before they would issue the visa, they could have made the trip to meet each other. If the AOS adjudicator denied the AOS and told them to redo the K-1 visa, they could have done that. But the visa approval and lack of those corrective actions likely led him to believe that the meet-in-person requirement was waived, and now the error cannot be undone.

If he loses the green card after all these years based on that USCIS error with a nonimmigrant visa, that opens the door for other revocations such as revoking an employment-based green card because the green card was obtained through adjusting status from H1B and the employer missed something in the H1B process.

 

[CalGreenCard]

So does he keep his green card? I see no indication of rescission being initiated in the 5 years since green card issuance; he was in removal based on I-751 denial, not an erroneous green card. And he eventually got the I-751 waiver approved in court. So at least he keeps the green card, apparently.

I think he gets to keep his green card.

The ruling is a bit disturbing. However, it's important to remember that the petitioner (the guy seeking naturalization) is the one who, in effect, requested a review of his entire immigration history by filing this case in Federal court. He knew--or should have known--that the burden of proof would be on him. Given that he then failed to make himself available to provide evidence of any kind, it is hard to see how the Court was supposed to do anything other than what it did.

We don't know the details as to why he suddenly returned to Iran--but he seems to have been vague himself. To file a federal Court action and then disappear from view immediately thereafter wasn't a smart thing to do. If he wasn't ready to commit himself to fight this case, he shouldn't have filed it.

 

[kidurpalkan]

Google the title and read the ruling with the background.

There are two separate issues there.

1. The visa was issued to this man in error , but he had nothing to do with it. It appears that he was required to see his fiance and, as he and his fiance were in the process of preparing to meet each other, got issued the visa and came to US.

2. The marriage didn't last two years and didn't take place until months after the beneficiary's arrival, who initially arrived in one State to stay with his brother as his fiancee was living in another.

It also appears that his wife gave the account of what transpired on four different occasions and in two out of those four occasions was flatly contradicting her earlier self.

It is , as court ruling states, impossible to determine whether the marriage was entered bona fide or with the purpose of evading the law. Too many individuals gave too many contradicting accounts of the couple at different times.

Immigration has brought the inconsistencies up during I-757 proceedings but, according to then precising Judge, failed to show that marriage was not bona fide.

Now, the Naturalization of the beneficiary seems to have been denied because of the issue # 2 and issue #1 is used in conjunction to aid the USCIS in reaching the conclusion. Because #1 is not beneficiary's fault, I am firmly convinced that had his denial been based on it alone he could overturn current court decision by bringing it up to the higher court.
#2 also could not be held against him because the fact findings of the judge at the time of making a decision have deciding effect on the outcome of the case unless some new and firm evidence emerges to open the case de novo.
Former (now divorced) wife who now claims fraud , after claiming the opposite earlier, is not credible (by virtue of contradicting herself) to begin with.
So, his LPR status can not be challenged.

However, it must be noted that Naturalization is a discretionary benefit and has higher standards than LPR. If USCIS has an opinion that the beneficiary didn't establish his eligibility it is not obliged to rule in his favor because of earlier court decision in separate LPR related case.

To overturn this case the beneficiary would have to show arbitrary and capricious abuse of discretionary power on behalf of decision making USCIS officer and misapplication of law by the ruling court.

However, this beneficiary, instead of holding his ground and supplying the ruling court with evidence of his eligibility to be naturalized, has chosen to flee the United States indefinitely and ignored all of the requests to submit the evidence in support of his case.

If anything, he got a big bite either due to his stupidity and negligence of legal requirements or due to his guilty consciousness and fear of standing his ground in court during the proceedings.

Either way, good riddance. You don't deserve to be a Citizen of this country if you are inept and unable to defend your ground in court or guilty and flee from fear.

 

[Jackolantern]

I have a feeling ICE is going to cite this case in an attempt to denaturalize somebody based on an erroneously granted nonimmigrant visa from 10 or 15 years ago.

 

[kidurpalkan]

You have an assumption which is not based on knowledge of the case or facts of the case cited in the referenced ruling.
It is always good idea to read and have at least some knowledge than base your assumptions on your feelings.

This individual is not liable for being issued a visa without first meeting his then fiance. They can not challenge and revoke his green card because the error was that of the visa issuing office, not petitioner or beneficiary. And if they do, they could be held liable for causing an undue hardship: because it was INS that issued the visa in error, not alien misleading the INS to get a visa.

I can bet that the main issue here was the fact that this guy divorced in less than 2 years and there are number of inconsistencies in the case (him arriving to one State to stay with his brother while fiancee lived in another, his (now divorced) wife contradicting her own self and telling that marriage was a sham and so on).

USCIS felt that this individual got married to get a visa and wanted to remove him during I-757 proceedings but for one or another reason did not or could not submit the evidence to prove its' case against him before the judge.

Later, when the said individual applied for Naturalization, USCIS reasoned that it will deny his N-400 based on null and void admission, but it is a faulty argument (whoever wrote it for USCIS didn't do it a good service).
In reality it can not void and nullify aliens' admission or put blame on alien for it, because it was the INS error to begin with.

What seems to have played a role in latest court decision is the fact that this individual fled the US instead of submitting the supporting evidence in the case that he brought against USCIS for denying his N-400 petition.

USCIS had thought that he had entered into sham marriage and used unrelated statute (admission on erroneously issued visa) to justify denial on grounds of alien lacking lawful admission to US.

Although it is not guaranteed, as N-400 has higher standards and affords more discretionary power to deciding officer, it can be contemplated that if he was not guilty , as USCIS thought, and if he was confident of being on side of the truth , firmly believing himself and due diligent in submitting all of the responses asked by the court then, perhaps, the ruling could be different.

What did this individual do? File the case to CHALLENGE the ruling and then immediately FLEE the country. What does it tell about his conscienceless?
This is the United States of America, perhaps the only place in the whole world where you can walk into the courtroom as into your own house and expect to receive a fair hearing and judgement on any plea you make.
Why flee if you are not guilty?

USCIS will not revoke his LPR as it is not subject of the court ruling , they rather rely on discretionary power and authority to deny Naturalization application , with court ruling on LPR proceedings having no binding power on decision made during Naturalization application.


P.S. I want to study for my JD degree and , once getting my degree and passing BAR exam, I would like to become an immigration attorney.
I was reading immigration cases and court rulings for years now and it is my firm belief that you can place your trust and full faith in the Judicial system of the United States without reservations.
Few , if any countries, in the world have THIS great a system. But you have to be on the right side and stand by indisputable evidence and follow all steps thoroughly or you will be squashed like a bug by an 18 wheeler.
Every time I read the immigration cases I reach two conclusions: 1. The cases are decided fairly and judges give very thorough, logical and profound reasoning for decisions reached. 2. Many immigrants are shockingly irrational and seem to have a culture gap of sorts that prevents them from understanding the seriousness and importance of both following the legal guilelessness and failure to do the same.

 

[Jackolantern]

The court upheld his naturalization denial because the consulate's error with the nonimmigrant visa made him ineligible for naturalization. ICE/USCIS could use that to make the argument that if somebody with a similar issue naturalizes as a result of USCIS ignoring the old error, they could be denaturalized if the error is discovered later, because they weren't eligible for naturalization in the first place. Whether a high court judge would accept that argument is another matter.

Having said that, I remember reading another case where a married couple's green cards were deemed to be issued in error because they didn't pay a required fee in the adjustment of status process, and USCIS denied their naturalization because of it (even though USCIS made no issue of the fee in the years while they held a green card before applying for naturalization). But the court overturned the denial and granted their naturalization.

Keep learning about immigration and following your ambition to become an immigration lawyer. Many immigration lawyers stumbled into it only after after realizing that they hated whatever other aspect of law they started their career in, and so they have no real passion for it and they screw up some of their clients with bad advice. Your knowledge and enthusiasm for the subject long before getting your law degree shows that you have a good foundation for becoming an excellent immigration lawyer.

I was reading immigration cases and court rulings for years now and it is my firm belief that you can place your trust and full faith in the Judicial system of the United States without reservations.

That is misguided thinking. The US legal system is very flawed, especially for those who don't have a lot of money to defend themselves. It may be less flawed than the vast majority of other countries' legal systems, but it's not so infallible as to justify "trust and full faith without reservations".