Safe Havens

(B)  Failure to Fulfill Marital Agreement.  A noncitizen is also deportable under this ground if the Attorney General finds that the noncitizen has failed or refused to fulfill his or her marital agreement, which the Attorney General believes was made for the purpose of procuring the noncitizen’s admission as an immigrant.[1305]  NOTE: No conviction is required to establish this ground of deportation.   

This ground of deportation allows the government to deport a noncitizen even if the family law court has not dissolved the marriage, and was designed to strengthen the protection against those who entered fraudulent marriages to defeat quota restrictions.[1306]  One safe haven is applicable because this ground of deportation does not apply if the noncitizen’s failure to consummate the marriage resulted from the U.S. citizen or lawful permanent resident spouse’s refusal to fulfill his or her marital responsibility.[1307]

Another safe haven exists when the marriage was entered into in good faith, with intention to fulfill the marital obligations, since the later failure or dissolution of the marriage will not establish this ground of deportation.[1308]  To create this ground of deportation, the fraud must relate to the noncitizen’s entry into the United States.  Even if the marriage is annulled for fraud, this will not trigger deportation under this ground if the fraud did not relate to obtaining immigration benefits.[1309]

      In assessing whether the marriage was entered in good faith, consideration whether it was consummated by intercourse is relevant, but not controlling.[1310]  A civil court’s finding of fraud is not binding on the immigration court.  It is a safe haven, and a statutory defense to removal under this ground, if the noncitizen can show the annulment or divorce actually resulted from incompatibility or some other cause unrelated to evasion of the immigration laws.[1311]

      There is no statutory presumption under this ground, and the government must prove deportability by clear and convincing evidence.  See § 5.24, supra.[1312]

[1305] INA § 237(a)(1)(G)(ii), 8 U.S.C. § 1227(a)(1)(G)(ii). 

[1306] Witter v. INS, 113 F.3d 549 (5th Cir. 1997).

[1307] See S. Rep. No. 82-1137, at 22 (1952); H.R. Rep. No. 82-1365, at 61 (1952), reprinted in 1952 U.S.C.C.A.N. 1653.  Another provision adopted in 1961 prevents the Attorney General from approving a visa petition based on relationship if the A.G. finds that the noncitizen was previously awarded a visa on the basis of a marriage contracted solely to evade the immigration laws.  See INA § 204(c), 8 U.S.C. § 1154(c).

[1308] Matter of M, 7 I. & N. Dec. 601 (BIA 1957) (distinguishing an apparently contrary holding in Giannoulias v. Landon, 226 F.2d 356 (9th Cir. 1955)).

[1309] Matter of V, 7 I. & N. Dec. 460 (BIA 1957); Matter of T, 7 I. & N. Dec. 417 (BIA 1957); Matter of Neto-Domingos, 15 I. & N. Dec. 310 (BIA 1975) (marriage fraud deportation ground not proven when marriage was in good faith, but terminated before the noncitizen entered the United States in reliance on such marriage).

[1310] Witter v. INS, 113 F.3d 549 (5th Cir. 1997) (couple’s subsequent vacation of an annulment does not automatically rebut a charge of marriage fraud by creating a legally valid marriage); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994).

[1311] Matter of M, 7 I. & N. Dec. 601 (BIA 1957); Matter of Mietus, 11 I. & N. Dec. 679 (BIA 1966) (refused to live with wife or go through religious ceremony).

[1312] Matter of V, 7 I. & N. Dec. 460 (BIA 1957); Matter of T, 7 I. & N. Dec. 417 (BIA 1957); Sideropoulos v. INS, 357 F.2d 642 (6th Cir. 1966); Matter of Oliveira, 13 I. & N. Dec. 503 (BIA 1970) (government’s prima facie showing satisfies “clear, unequivocal, and convincing burden” in absence of contrary evidence); Small v. INS, 438 F.2d 1125 (2d Cir. 1971) (burden on respondent to refute presumption); Vasquez-Mondragon v. INS, 560 F.2d 1225 (5th Cir. 1977) (“heavy burden” on respondent); Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985) (although sufficient evidence of fraud was produced, it was unnecessary because respondent failed to present any evidence to rebut the statutory presumption).