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Error in Placing the Burden of Proof

In a petition for review brought before the United States Court of Appeals, a case involving a citizen of Latvia who married a U.S. citizen was seeking to have the conditions removed from her permanent residency. To obtain unconditional legal permanent residency, her and her husband needed to petition jointly within the 90-day period before the second anniversary of her being granted conditional permanent residency. Here is where the case got complicated.

Four months after they were married, her husband suddenly died. Since she could no longer file a joint petition, she proceeded on her own requesting a waiver of the joint-filing requirement due to her spouses’ death. The agency denied her request claiming that they had reason to believe that she had not entered the marriage in good faith. This decision leads to her status being terminated as a conditional permanent resident and charging her with removability.

During her removal proceedings, she was advised that she could renew her request for the waiver of the joint filing.  She would carry the burden of presenting enough evidence to show that the marriage was bona fide. In the end, the immigration judge determined that she failed to meet that burden and did not prove she entered the marriage in good faith. The outcome was appealed to the Board of Immigration Appeals (BIA) which upheld the ruling and dismissed her case.

In the petition for review of her case, she argued that the immigration judge should not have given her the burden to prove her marriage was bona fide. Because her husband had died within the two-year conditional period and she petitioned in a timely manner, she should have been exempt from the joint-filing requirement. The panel for review agreed with her that if the immigration judge had recognized that a waiver was not required in her case, the burden would have been on the government to prove that the marriage was not in good faith. The court remanded the decision back to the BIA for them to consider the effect this had on the outcome of her case. Click to read more.


Mario Godoy

Mario Godoy, Attorney at Immigration Simplified
Mario A. Godoy is the founder of Immigration Simplified and Godoy Law Office. His mission is to provide immigrants access to affordable, lawyer-backed immigration services. Immigration Simplified serves immigrants and foreign visitors to the United States. We help U.S. citizens reunite and/or obtain legal immigration status for their family members.
Mario Godoy

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