We write from time to time about how certain scheming aliens con citizens into marriages intended by the aliens to produce a green card (and often an income) rather than a lasting relationship (see here and here). Congress, its Violence Against Women Act (VAWA), and the Department of Homeland Security, wittingly or not, have made the process easy for the conniving alien, and virtually impossible for the conned citizen spouse to undo.
But a tiny victory in the field has emerged, after a years-long struggle, from a decision of the Fourth Circuit Court of Appeals; it offers a way out in an unusual situation in which an alert citizen spouse victim can outwit a clumsy alien seeking an illicit green card.
The long story began when a Cambodian national named Song convinced an American citizen named Sang (probably of Cambodian background) to marry her about 10 years ago. Since Sang was in the States and Song was in Cambodia at the time, he filed a K-1 (fiancé visa) application for her, as well as another form (the I-864) promising the government that he would support her, and that she would not become a public charge.
She arrived, and within the stipulated 90 days that followed, she married Sang; the marriage soon “collapsed” according to the files, telling us no more than that (neither side, according to my reading of the court records, charged anyone with abuse or fraud). Then she filed for an adjustment of status (as a self-petitioning spouse) but before that application could be adjudicated he withdrew his I-864 and USCIS ruled that she should not be adjusted, and should be deported on the grounds that she was in danger of becoming a public charge.
She then started a 10-year-voyage through the courts, appealing first to an immigration judge (who turned down her appeal), then to a group of three members of the Board of Immigration Appeals (the BIA), who said no to her, and then on to the Fourth Circuit, where a three-judge panel, unanimously, said no again, and this was reported by Law360.
At this point Song had been before at least eight different decision-makers: one or more adjudicators in USCIS, an immigration judge, three members of the BIA panel, and three federal appeals judges. All eight of them ruled against her. There was, over the years, ample due process.
I discussed the case with Elena Maria Lopez, a one-time victim of a predatory marriage with an alien and one of America’s leading activists on the subject. She was pleased with the outcome, but suggested that this was a rather rare set of circumstances, in that Sang had (unlike most victims) moved swiftly to withdraw his promise of support, and that Song (unlike many aliens in these circumstances) had not filed (true or false) claims of abuse at the hands of Sang. Further, USCIS had denied Song’s claim; routinely it finds in favor of the alien spouse, often without letting the citizen spouse even know of the matter.
Conceivably Song’s lawyer could appeal the decision to the Supreme Court, and conceivably the Supremes could hear and reverse the decision below, but this seems unlikely. Another possibility is that Cambodia, routinely non-cooperative on accepting deportees, could refuse to accept her return. She may remain in the States for the rest of her life despite the multiple decisions made against her.
The case number is 18-2496 in the Fourth Circuit. The BIA’s decision is Matter of Sothon Song 27 I. & N. Dec 488 (BIA 2018). BIA has made it a precedential decision.