Friday, April 23, 2010
Court: Fraudulently Married Alien May Not Adjust Status
By a MetNewsStaff Writer
A Palestinian immigrant who entered into a fraudulent marriage with a U.S. citizen could not obtain legal permanent resident status after his divorce and marriage to a new spouse, the Ninth U.S. Circuit Court of Appeals has ruled.
The panel explained that Ivad Hammad bore the burden of establishing that his 1994 marriage to Veronica Fierro was bona fide after she told Immigration and Naturalization Service officials that it was a sham.
Hammad was granted permanent resident status on a conditional basis for two years in 1995, based on his marriage to Fierro. About a month before this two-year period elapsed, the couple filed a joint petition to remove the condition on Hammadís resident status.
INS officials later interviewed Hammad and Fierro separately and discovered inconsistencies between their descriptions of daily life together. Fierro then admitted that the marriage was a fraud. She signed an affidavit stating that Hammad had paid her $2,000 for helping him become a permanent resident and that she had never lived with him nor had sexual relations with him.
After Fierro withdrew her support of the joint petition, Hammad was served with a Notice to Appear and a removal hearing was scheduled.
Before his removal hearing commenced, Hammad filed a petition asking the INS to waive the joint petition requirement based on having been battered or the subject of extreme cruelty perpetrated by his spouse during the good faith marriage. To support his petition, Hammad submitted an undated written statement, purportedly signed by Fierro, which retracted her affidavit.
The statement indicated that Fierro had lived with Hammad as his wife and that she had withdrawn her support of the petition under duress from the INS and because she was angry about rumors that Hammad was planning to remarry. Fierro supposedly decided to come forward with the truth after Hammad promised to take care of her and her baby, who was fathered by another man and born in 1995.
In addition to submitting the undated statement, Hammad was interviewed again by the INS. At the interview, Hammad disclaimed his prior assertion of having been subject to any mental or physical cruelty during marriage, and instead sought a waiver based on having entered into a good faith marriage that ended in divorce. At the time of the interview, Hammad had filed for divorce but the divorce was not yet final.
The INS denied Hammadís petition for a waiver and terminated Hammadís conditional resident status based on its finding of marriage fraud.
At Hammadís removal hearing, the government submitted a new declaration by Fierro which claimed the undated statement submitted by Hammad was neither written nor signed by her and, in fact, contained lies. Fierro also testified telephonically, maintaining that she had never been romantically involved with Hammad.
The immigration judge found that the evidence did not establish as good faith marriage and ordered Hammad removed to Jordan. The Board of Immigration Appeals affirmed.
On appeal for the Ninth Circuit, Hammad argued that 8 U.S.C. ß 1186 placed the burden of proof on the government to prove that his marriage was fraudulent, but Judge Sandra S. Ikuta explained in her decision for the appellate court that statute only applied to situations where the INS determines that the alienís qualifying marriage was improper during the two-year period before the conditional status terminates.
ďBy its terms, ß 1186a is inapplicable to Hammad, because the INS did not terminate Hammadís conditional permanent resident status until August 7, 1997, when Hammadís two-year period had already lapsed,Ē she said. ďThe provision applicable to Hammad is ß 1186a(c), which provides that an alienís conditional resident status terminates automatically when the alien and the alienís U.S. citizen spouse fail to file a joint petition.Ē
Ikuta reasoned that Fierroís withdrawal of her support for the petition was equivalent to the failure to file, and so the IJís allocation of the burden of proof to Hammad was not error.
Since Hammadís testimony was inconsistent not only with Fierroís testimony, but also with the testimony of his own witness, Ikuta said the IJís adverse credibility finding was supported by substantial evidence. Given these inconsistencies, the IJ and BIA ruling that the marriage was fraudulent were also supported by substantial evidence, she added.
Ikuta also concluded that Hammad was not entitled to an extreme hardship waiver since his argument was based entirely on the effect his removal would have on his family from his second marriage, and the relevant circumstances for such a waiver are those which occurred during the period he was admitted for permanent residence on a conditional basis, which lapsed before he remarried.
Senior Judge Alfred T. Goodwin and Judge Marsha S. Berzon joined in the opinion.
The case is Hammad v. Holder, 07-72370.
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