Form I-751 Denials and Immigration Court
If the I-751 is denied by USCIS, the case will be referred to an immigration court for deportation proceedings. This occurs whether the I-751 is a joint petition or a waiver petition. In immigration court, the alien can ask the immigration judge to review the I-751 denial. If the I-751 was filed jointly by the married couple, the government's trial attorney has the burden of proving that the marriage was not entered into in good faith. INA 216(c)(2)(B). The government must prove the marriage is not bona fide by a preponderance of the evidence.
The government attorney must provide the court and the alien with a copy of the administrative record including the I-751 petition, all supporting documents and the decision of the USCIS examiner. The government attorney may produce the USCIS examiner as a testifying witness, but is not required to do so unless the judge or alien insists.
Adjudication of the I-751 joint petition is purely factual, and there is no discretionary aspect. If the facts and information of the I-751 joint petition regarding the bona fide nature of the marriage are true, then the conditions must be removed. If they are not true, the conditional permanent resident status shall be terminated.
The I-751 waiver, on the other hand, is a discretionary determination. The determination of what evidence is credible and the weight given to that evidence are within the sole discretion of the Attorney General. INA 216(c)(4).
If the immigration judge agrees with the USCIS denial and find s that the marriage is not bona fide, the case can be appealed to the Board of Immigration Appeals.
If the joint I-751 was denied by USCIS and the couple divorced before immigration proceedings started, the alien will need to file a new I-751 with USCIS. The I-751 with a waiver must be filed with USCIS even though the alien is in removal proceedings, because the immigration judge does not have jurisdiction to adjudicate any I-751 petitions. The immigration judge only has jurisdiction to review the denial of an I-751 by USCIS. In these cases, the immigration judge will often continue the deportation proceedings in order to give USCIS time to adjudicate the newly filed I-751.
Click here f or more information on Unreasonable Processing Delays.
If your I-751 was denied by USCIS, your case will be referred to the immigration court. You will need an experienced and knowledgeable attorney to represent you and persuade the immigration judge that your I-751 should have been granted. Contact Nelson & Nuñez, P.C. to schedule a confidential consultation. Nelson & Nuñez, P.C. will discuss your case with you and explain your options thoroughly.
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