marriage

Department of State v. Muñoz

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no right to marriage

In State Department v. Muñoz, the U.S. Supreme Court ruled against a U.S. citizen who said her constitutional rights were violated by the federal government when it denied a visa to her Salvadoran husband. Munoz and her husband, who she married in 2010 and has a child with, have been separated since 2015 while they were going through the visa process. After several interviews, a consular officer denied Asencio-Cordero’s application, citing a provision that renders inadmissible a noncitizen whom the officer believes seeks to engage in unlawful activity. Asencio-Cordero and Muñoz sued the Department of State, claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar, because the consulate did not provide any further explanation for the decision. Visa denials are not reviewable in court unless the government violates an applicant’s constitutional rights in the process.The Supreme Court on Friday rejected Munoz’s claim that the delay in explaining the denial violated her due process rights by interfering with her fundamental right to marry. The claim “involves more than marriage and more than spousal cohabitation — it includes the right to have her noncitizen husband enter (and remain in) the United States,” Justice Amy Coney Barrett wrote for the court. Justice Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) wrote, “There is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision.”

Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023)

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Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. [Full Decision] Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) At a 2019 hearing before the Immigration Judge, DHS indicated that it did not have the respondent’s file and sought a continuance to locate it. The respondent did not object but asked that the proceedings move forward as quickly as possible to obtain review of USCIS’ decision denying his most recent I-751 petition to remove the conditions on his residence. The Immigration Judge continued the case for one month. At the next hearing, DHS still had not located the respondent’s file. The Immigration Judge asked the DHS attorney if she was moving to terminate for failure to prosecute the case, and the DHS attorney indicated that she was. The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” The respondent also contended that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751, which at that point he had been seeking for nearly a decade. The Immigration Judge granted DHS’ motion to terminate the removal proceedings on the ground that the court lacked jurisdiction tointerfere with DHS’ prosecutorial discretion. The respondent timely appealed. The Board found that Congress has provided that a decision by USCIS to terminate anoncitizen’s conditional permanent resident status is reviewable in removal proceedings by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only permitted avenue for review. See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R. § 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to deny a waiver of the joint filing requirement]; however, the alien may seek review of such decision in removal proceedings.”). Where the basis for USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint filing requirement, the Immigration Judge reviews the denial of the waiver as well. See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642 (collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec. 589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s review of the denial of an applicant’s request for a waiver of the joint filing requirement). Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec. at 284. The Immigration Judge has authority to adjudicate this request “based on an evaluation of the factors underlying the [DHS’] motion.” Id. The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. Regulations provide that when USCIS terminates conditional permanent resident status by denying a Form I-751, there is no appeal from that decision to any higher authority within USCIS, and the noncitizen must be placed in removal proceedings. 8 C.F.R. § 1216.3(a). At that point, the denial of the Form I-751, and any associated waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D); 8 C.F.R. §§ 1216.3(a), 1216.5(f); Matter of Bador, 28 I&N Dec. at 642. The appeal was sustained and the case was remanded to the Immigration Judge to review the Respondent’s petition to remove conditions on his residency. See full decision here.

Conditional Residency (two-year green card)

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What is conditional residency (conditional green card)? A conditional green card, also known as CR1, is valid for two years and is issued to foreign nationals who have been married for less than two years. It is important to note that the conditional green card cannot be renewed. To maintain your status and avoid the need to leave the United States, it is necessary to adjust your status within the 90-day period before the card expires. As part of the process to remove the conditions on your permanent residency, it is required to provide evidence that your marriage is genuine. Petitioning to Remove Conditions When your conditional residency is nearing the end of its validity period and now you need to petition to remove the conditions with Form I-751 three months before your conditional residency expires. If you are still married you will petition with your spouse informing USCIS that you are still married to the spouse who petitioned for you. This is considered a joint petition to remove the conditions since both you and your partner will sign it (exceptions listed below to divorce, abuse, etc.) If you are no longer married to the spouse who petitioned for you then you must self-petition with a request for a waiver of the join filing requirement based on the termination of the marriage. You will have to show USCIS that you are now divorced (you can file if your divorce is pending but it can’t be approved until your divorce is finalized). Further, you will need to prove to the USCIS officer’s satisfaction that the marriage was bona fide at the time when you entered into it. Removing the Conditions Without Your Spouse As discussed above, you can petition without your spouse requesting a waiver of the joint-filing requirement under the following conditions: If you are filing with the request to have the joining requirement waived (filing individually) you can do so between the time your are granted conditional resident status and before being removed from the U.S. If extraordinary circumstances arise and you are unable to file (not due to your fault) you are permitted to file late but must include a detailed explanation of the reason you’re filing late to USCIS. When to file Form I-751? You should aim to submit your application within the 90-day period before your conditional green card expires. It’s important to note that this is a joint petition, so both partners should complete and sign the form together. In addition to the form, you will need to provide sufficient evidence to prove the authenticity of your marriage. This can include documents such as joint bills, joint lease/mortgages, photos of you and your partner together, and any relevant documentation regarding children (if applicable). Don’t forget to include a copy of your conditional green card and the necessary filing and biometric fees. Filing Fee & Biometric Service Fee The filing fee for Form I-751 is $595 while the biometric service fee is $85. What to Bring to Your Biometrics Appointment Review your biometric appointment sheet to see what exactly they’d like you to bring. You should be sure to bring a form of government photo ID such as : Documents to Support Good Faith Marriage Frequently Asked Questions About Conditional Green Cards My conditional green card expired, can I still work? If your conditional green card expired but your filed Form I-751 already then your resident status is automatically extended for 24 months while your case is processed by USCIS. On the receipt notice it will say “Your conditional permanent resident status is extended for 24 months from the expiration date on your Form I-551, Permanent Resident Card (also known as a Green Card).” That means you are legally able to travel out of the United States and work in the U.S. for those 24 months. Do I need to file an extension for this 24-month period? No, as long as you have submitted Form I-751 prior to the expiration of your conditional green card, this extension is automatic. What if I am asked for proof of my immigration status? If someone asks you can show them the receipt notice from USCIS (mailed within 6-8 weeks after filing Form I-751) and your expired green card as these serve as proof of your status. You are still a conditional resident while your I-751 is pending. What if my conditional green card expired and I didn’t file Form I-751? Until an NTA has been filed with the immigration court you are still able to file an I-751 with USCIS, but you would want to consult with an immigration attorney first as this makes your case more complicated. Even if your case is sent to the immigration court you are always able to file an I-751 with the Court and the Judge will rule on your removal of conditions. Can someone with a conditional green card do everything a permanent green card holder can? Yes, apart from having to remove the conditions after the two years, they have the same rights. Do people with ten-year green cards need to file Form I-751? No, they do not. Only those with conditional 2-year green cards. What does IR1 on my green card mean? This stands for immediate relative. Does my time as a conditional resident count towards my citizenship? Yes, it does. What is a CR6 green card? CR is the class of admission so if you see CR6 that means you have a  conditional green card. Is an interview required? If you and your spouse are filing jointly to remove the conditions, you may not need to be interviewed. The chances of being required to go through an interview are higher if you are requesting to waive the joint filing requirement, which is the case if you are divorced, or if you were not interviewed for your conditional residency. How long does it take to get permanent green card from conditional? Once you have submitted Form I-751, Petition to Remove … Read more