Brief Facts: Beneficiary/Applicant married an Indian National in India. US citizen Petitioner moved to India and stayed with Beneficiary for few months and then moved back to the United States. Petitioner goes to India on regular basis but every time keeps abusing Beneficiary in India. After one year, Petitioner finally agreed to file to a Petition for Beneficiary. Beneficiary was ultimately moved to the United States on a conditional green card. As soon as Beneficiary moved in, Petitioner started abusing her and kicked her out of the house. She ultimately moved to a friend’s house and contacted us about her situation.
Issue: USCIS was not agreeing on the bona fide of the marriage because they believed that the parties did not live together for enough time.
Legal Analysis: In the case at hand, Beneficiary’s marriage was valid at the inception and intended to “establish a life together at the marriage”, Bark v. INS, 511 F.2d 1200, 1202 (9th Cir. 1975). Indeed they lived together in India before Beneficiary moved to the United States where she was only then “abandoned” by her spouse. The fact that the Petitioner and the Beneficiary did not live together for a long period of time should not determine the outcome of this case. Based on the Matter of Boromand, 17 I&N Dec. 450,454 (BIA 1980), as long as a marriage is valid at inception even if the partners are separated and the marriage is no longer viable, the marriage should stand for immigration purposes. Furthermore, the non-viability of a marriage cannot let alone be the basis of a denial although it is discretionary (Hernandez v. Ashcroft, 345 F.3d 824, 845-49(9th Cir. 2003).
Because this relationship was unique on the fact that the Beneficiary had a good marriage with the idea that her spouse will be by her side when she enters the United States, Beneficiary clearly intended to “establish a life together.” The affidavit and police report in this case demonstrate that Beneficiary was subject to many abuses. Therefore, notwithstanding all the odds of this relationship, Beneficiary deserves the right to have her conditional residence removed.
It would have been unfair to deny Beneficiary of the ability to stay in the United States solely on the fact that Beneficiary did not have a chance to spend life with the abusive spouse after he kicked her out on the day she arrived, since they did indeed live together before, and the spouse also expressed that he intended to have her come to the US to live with him. Since her arrival, he has continued to threaten Beneficiary and her family, thus continuing to subject her to mental cruelty.
Outcome: It took us two years of fight and four immigration interviews for us to win this case but we finally did. By the time we won, Beneficiary was eligible for US citizenship.