James C. Tai, Attorney at Law

1. Deferral Under the Convention Against Torture (CAT) granted to detained individual from Romania who suffers from sever mental illnesses. 

2. Immigration Judge held that a conviction for Trafficking in Amphetamine in violation of Fla. Stat. §893.135(1)(f)(1)(a) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

3. Immigration Judge held that possession of cocaine with intent to purchase in violation of Fla. Stat. §893.13(1)(a)(1990) is not an aggravated felony under INA §101(a) (43)(B): illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18). 

4. Immigration Judge terminated proceedings holding that Fla. Stat. 540.11(3)(a)(3)(Unauthorized Sale of Sound Articles) is not a crime involving moral turpitude.   

1. Purpose of the I-751

When a Green Card applicant has been married for less than 2 years, the applicant is initially issued a Conditional Green Card, which is good for 2 years. Just before the expiration of the conditional period, the I-751 is filed to apply for a permanent Green Card (which is good for 10 years). The purpose of the I-751 is to reaffirm that the initial marriage took place in good faith.

2. When to file

The I-751 must be filed with USCIS within 90 days prior to the 2-year anniversary of
the issuance of the conditional Green Card.

3. Filing Jointly vs. Filing Single

When you are still married to the same person you were married to at the time of the issuance of the conditional Green Card, you will file the I-751 jointly.

You will file as a single person in the following cases:

a. You entered the marriage in good faith and your spouse has died;

b. You entered the marriage in good faith and you are now divorced from the person to whom you were married at the time of the issuance of the initial Green Card (even if you’re now remarried to someone else, you will file as single);

c. You entered the marriage in good faith and you have been battered or subject to extreme cruelty by your petitioning spouse;

d. Your parent was a conditional resident who entered into the marriage in good faith, but you have been battered or subject to extreme cruelty by your parent’s U.S. citizen or permanent resident spouse or by your conditional resident parent; or

e . The termination of your status would result in extreme hardship to you or a dependent child.

4. Standard for the I-751: Good Faith Marriage (see Matter of Soriano)

To determine whether a marriage was entered into ‘in good faith,’ “[t]he central question is whether the bride and groom intended to establish a life together at the time they were married.” See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).

To establish ‘good faith’, the court will consider documents such as:

a. proof that the spouse has been listed as the beneficiary on the petitioner spouse’s life insurance policy;

b. documents showing joint ownership or joint responsibility (e.g. property leases)

c. documents showing a comingling of finances (e.g. tax returns, bank statements)

d. shared experiences

e. marriage ceremony

f. birth certificates of any children born as a result of the relationship

5. Common scenarios in which an I-751 matter would end up before an Immigration Judge

You never filed an I-751 (whether you’re still married or not)

a. If you were issued a temporary Green Card and never file the I-751 to remove
the conditions, you can be placed into removal proceedings for having no lawful status once the temporary Green Card has expired.

b. If this happens, you can still file the I-751 with USCIS and an Immigration
Judge (IJ) can either grant continuances on your removal proceedings while the I-751 is being decided, or the IJ can administratively close your case until
USCIS issues a decision on the I-751. If the case is administratively closed
until a decision is made on the I-751, the IJ would then re-calendar your case
to restart proceedings once USCIS has made its decision.

An I-751 was filed and denied by USCIS based on the merits.

a. The IJ will hold an individual hearing to review the decision of USCIS.

b. You would not be required to re-file the I-751 or pay a new filing fee.

• An I-751 was filed and denied by USCIS based on failure to attend interview.

a. The IJ will hold an individual hearing to decide whether to grant the I-751.

You would not be required to re-file the I-751 or pay a new filing fee.

• In all of the above scenarios, the I-751 can be filed jointly or separately. If not

filing jointly, the scrutiny is generally higher as to the good faith marriage.

Note: I-751 can still be filed if the immigrant spouse is now married to someone besides the spouse for which the conditional green card was obtained through. In that case, the immigrant spouse would apply as a single person because the I-751 is based on the
marriage under which the initial Green Card was issued.