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When deciding if the marriage was legit or not does the judge care who first petitioned for divorce and if it was un/contested?

Los Angeles, CA |

My question relates to the immigration judge who reviews the LPR's case during the removal proceedings. If fraudulent charges have been brought against the immigrant, how does the initiated divorce by the American spouse affect the decision of the judge or is this not an issue?

I read somewhere that the LPR has to prove that the divorce was not his fault and this is where my confusion begins. If the divorce was his fault for openly telling the American spouse that the marriage is not legit, which then results in termination by the American spouse, how then it is not the immigrants fault? I find this tricky as it relates to my situation.

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Attorney answers 5


Immigration judges are very smart individuals and most of them look at the "totality of circumstances and don't base their decision on just those "details" you are mentioning.. In any event, those are simply "one sided allegations", nothing more. Also., in immigration court ICE has the burden of proving marriage fraud by "clear and convincing" evidence - nearly always impossible if you've got a sharp immigration lawyer on your side.

Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


It's nearly impossible to prove marriage fraud in court.

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Interesting. What is it based on? Are all frauds dismissed by the IJ? Why does the USCIS send people to court over fraud sometimes if it's a loosing situation for the government?


No, who filed for divorce first isn't important.

Is this an I-751 renewal case? If so, the bona fides at-the-time-of-marriage are important.

Talk to a lawyer, don't go to court without one.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.



Yes, sir. It is an issue of I-751 now and I received a Notice to Appear over fraud.

F. J. Capriotti III

F. J. Capriotti III


You need a lawyer. You need a lawyer. Need I say it again? You need a lawyer.


First, who brought fraudulent charges? Second, fraud is ALWAYS an issue. The immigrant has to prove that his intent at the time of entry into the marriage was not sham, divorce issues are secondary here. If by now you don't have an attorney yet, you need to hire one as soon as possible.

The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter,not should it be viewed as establishing an attorney client relationship of any kind.


The real issue is here whether or not the immigrant intended to marry the USC/LPR spouse at the time the marriage was entered into. What happens later is secondary. The immigrant will have to prove to the judge that the reason he or she wants to marry the USC/LPR is not ONLY to circumvent immigration law /obtain immigration benefits. Consult an immigration attorney as details of your particular circumstance are important in evaluating your removal case.

Law Office of Stacy Chiang. 415-765-1506. Mandarin and Cantonese speaking. Please be advised that the above information is only general in nature and does not constitute legal advice. It does not create an attorney-client relationship.

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