Safe Havens

(A)  Early Termination of Marriage.  The noncitizen is deportable if s/he has obtained any admission on the basis of a marriage entered into less than two years prior to the admission, which within two years after any admission is judicially annulled or terminated, unless the noncitizen establishes to the satisfaction of the Attorney General that the marriage was not contracted for the purpose of evading immigration law.[1298]  NOTE: No conviction is required to establish this ground of deportation.    

This ground of deportability exists if a marriage entered less than two years before admission is terminated by divorce or annulment within two years after entry, creating a presumption that the marriage was fraudulent.[1299]  The noncitizen can rebut this presumption by proof that the marriage did not occur in order to evade the immigration laws. [1300]  The noncitizen has the burden of rebutting the presumption.[1301] The noncitizen’s burden is satisfied if s/he proves by a preponderance of the evidence that the marriage was not fraudulent.[1302]  In an interesting recent case, the Fifth Circuit held that a couple’s subsequent vacation of an annulment does not automatically rebut a charge of marriage fraud by creating a legally valid marriage.[1303]

A prima facie case establishing this ground of deportability would consist of proof (or a concession) of alienage, a marriage to a U.S. citizen within two years before entry, admission into the United States on documents procured on the basis of the marriage, and termination of the marriage by divorce or annulment within two years after entry.  The respondent then has the burden of showing the marriage was not contracted in order to evade the immigration laws.[1304]

[1298] INA § 237(a)(1)(G)(i), 8 U.S.C. § 1227(a)(1)(G)(i). 

[1299] Rodriguez v. INS, 204 F.3d 25 (1st Cir. 2000) (state court judgment terminating marriage upon a specific finding of fraudulent intent to evade the immigration laws was a “presumption plus” that was not rebutted).

[1300] Sanroman-Hernandez v. INS, 51 F.3d 273 (6th Cir. 1995) (table); Vasquez-Mondragon v. INS, 560 F.2d 1225 (5th Cir. 1977); Matter of Neto-Domingos, 15 I. & N. Dec. 310 (BIA 1975).

[1301] INA § 237(a)(1)(G), 8 U.S.C. § 1227(a)(1)(G).

[1302] See Matter of Boromand, 17 I. & N. Dec. 450, 454 (BIA 1980).

[1303] Matter of Neto-Domingos, 15 I. & N. Dec. 310 (BIA 1975).

[1304] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.04[12][b] (2004).