AG Has Discretion in Green Card Marriage Joint Petition Waivers
True story: In college, one of our friends received a Dear John letter from his live-in girlfriend, explaining that she had married another man a year earlier to help him get his Green Card and had subsequently fallen in love with her husband. Our friend, unwittingly, was the mister-ess in a sham marriage.
Lest you think Green Card marriages are the stuff of fiction, they are very real. But that doesn’t mean they work in circumventing immigration laws. The Sixth Circuit Court of Appeals issued an unpublished opinion today, noting that a Green Card marriage doesn’t guarantee continued resident status or protection from a removal proceeding.
In the case, Ghana native Mark Osei entered the U.S. in 2001, and received conditional permanent resident status based on his marriage to a U.S. citizen. He divorced in 2005.
Osei filed two petitions to remove the conditions on his permanent resident status, seeking a waiver of the requirement that he and his wife jointly file the petition. The government denied both petitions, concluding that Osei had failed to establish that he entered into his marriage in good faith, and initiated removal proceedings.
An alien who gains conditional permanent resident status by marrying a United States citizen is required to file a joint petition with his spouse to remove the conditional basis of his status. A conditional permanent resident may seek a waiver of the joint filing requirement by showing that "the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated, (other than through the death of the spouse), and the alien was not at fault in failing to meet the [joint filing] requirements."
The decision to grant a waiver, however, is within the Attorney General's discretion, and the Attorney General has sole discretion in determining what weight to give evidence in a waiver petition.
Joint petition challenges for failed Green Card marriages are largely a losing battle for immigration lawyers. Since the Attorney General decides whether a petitioner's evidence is credible, you are unlikely to prevail in a removal proceeding appeal based on a joint petition waiver denial.
- Osei v. Holder (Sixth Circuit Court of Appeals)
- Petitioner Bound To Attorney Admissions in Removal Proceeding (FindLaw's Third Circuit blog)
- No Immigration Removal Relief for Defendant Caught Lying to FBI (FindLaw's Sixth Circuit blog)
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