Marriage Fraud8 U.S.C. § 1325(c) and 18
U.S.C. § 1546
Marriage fraud has been prosecuted, inter alia, under 8 U.S.C. §
1325 and 18 U.S.C. § 1546(a). The Immigration Marriage Fraud
Act of 1986 amended § 1325 by adding § 1325(c), which
penalty of five years imprisonment and a $250,000 fine for any "individual
who knowingly enters into a marriage for the purpose of evading any
provision of the immigration laws." Under 8 U.S.C. § 1151(b),
"immediate relatives" of U.S. citizens, including spouses, who are otherwise
qualified for admission as immigrants, must be admitted as such, without
regard to other, ordinary numerical limitations. The typical fact pattern
in marriage fraud cases is that a U.S. citizen and an alien get married.
They fulfill all state law requirements such as medical tests, licensing,
and a ceremony. But the U.S. citizen is paid to marry the alien in order to
entitle the alien to obtain status as a permanent resident of the United
States; the parties do not intend to live together as man and wife. A legal
issue arises where the parties tell the INS they are married, and they
subjectively believe they are telling the truth because they have complied
with state marriage requirements. The Supreme Court has ruled that the
validity of their marriage under state law is immaterial to the issue of
whether they defrauded INS. See Lutwak v. United States, 344
U.S. 604 (1953). Lutwak was followed in United States v.
Yum, 776 F.2d 490 (4th Cir. 1985); Johl v. United States, 370
F.2d 174 (9th Cir.1966), and Chin Bick Wah v. United States, 245
F.2d 274 (9th Cir.), cert. denied, 355 U.S. 870 (1957). But
see, United States v. Lozano, 511 F.2d 1 (7th Cir.), cert.
denied, 423 U.S. 850 (1975); United States v. Diogo, 320 F.2d
898 (2d Cir. 1963). But cf, United States v.
Sarantos, 455 F.2d 877 (2d Cir. 1972).|
There have been situations where a bona fide marriage turns sour but
the alien induces the U.S. citizen spouse to maintain the marriage as a ruse
only as long as necessary for the alien to obtain status as a permanent
resident alien. There is a line of cases holding that the viability of the
marriage, if initially valid, is not a proper concern of the INS. United
States v. Qaisi, 779 F.2d 346 (6th Cir. 1985); Dabaghian v.
Civilleti, 607 F.2d 868 (9th Cir. 1979), and cases cited therein.
However, the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. §
1186a, were designed, inter alia, to eliminate the Qaisi type loophole by
establishing a two-year conditional status for alien spouses seeking
permanent resident status, and requiring that an actual family unit still
remain in existence at the end of the two year period.
[cited in USAM 9-73.700]