Update 4/9/2013: Baltimore City Paper publishes an article about attorney Hassan Ahmad’s constitutional challenge to the marriage fraud statute.

Original Blawg Post follows:

People get married for many reasons. Love, wanting to start a family, convenience, arranged by parents, etc.  But what if getting a green card is part of the decision to get married? At what point does the marriage become “fraudulent”?

Marriage fraud – known commonly as a “sham marriage” or “marriage of convenience” or “green card marriage” or “fake marriage” – is such a large problem, and has been going on for so long, you would think the answer to that question would have long been settled.

It hasn’t, and it isn’t.

We’ve blogged about what to do when a marriage is shaky.  But today’s topic is marriage fraud.

Marriage fraud has been a favorite option of the fraudsters who want to gain permanent residency quickly.  In our experience, contractual fraud is the most common type: alien meets US citizen, agree to marry, get green card, and then divorce.  Sometimes the alien and the US citizen are introduced via a marriage “broker.” Other times they are friends, and may even date each other before tying the knot.  Sometimes the US citizen wants to “help” the alien who is facing deportation.

There are two main laws concerning marriage fraud.  INA 204(c) states that no visa petition may be approved under INA §204 if the “alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws…” 

That means if an alien entered into a fraudulent marriage, no one else can ever sponsor him for anything.

Secondly, there’s the federal statute,  8 U.S.C. 1325(c) states that “any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.”

Note the language in each one: “enters into a marriage for the purpose of evading [any provision] of the immigration laws.”

The first law, Section 204(c) is an agency, administrative remedy. In other words, it’s not a crime because you won’t go to jail if USCIS makes a finding under 204(c).  The second law, Section 1325(c), on the other hand, is a felony and you can go to jail if a federal prosecutor can prove you violated it.  So it is much more serious an offense.

Compare the language in each one and a few differences come to light.

Yet there are quite a few similarities. As in, similarly deficient:

The fact remains – people get married for many reasons, not all of which are clear.  And it’s precisely because marriage is a personal decision that it needs to be as free as possible from state regulation.  The fact that a legal marriage is itself a create of regulation is of little import: what is being protected, and why marriage is a fundamental constitutional right – is that it is a nearly universally recognized building block of society.  It transcends age, culture, language, time.  Any law that not only implicates this fundamental right, but criminalizes conduct constituting exercise of that fundamental right – must be subjected to the strictest of judicial scrutiny to ensure it passes constitutional muster.  

While 204(c) might take refuge in the stalwart (but subsiding!) plenary power doctrine, statutes like 1325(c) cannot be insulated from judicial review.   Especially when they are criminal statutes.  Especially when they implicate a fundamental right.  And especially when they don’t clearly indicate what they’re criminalizing!

The government rightly and justifiably has to detect and deter marriage fraud.  But it is respectfully submitted that the permanent and powerful 204(c) bar – which almost always leads to deportation – provides sufficient deterrent protection.  A criminal conviction for 1325(c) rarely results in a lengthy prison sentence, and moreover the criminal aspect should be reserved for those who broker fake marriages, not the actual participants.  Criminal prosecution for marriage fraud overreaches.  It provides little deterrent effect compared to removal proceedings and an order of removal.  Basically, 1325(c) adds nothing to the mix.  As such, it’s hard to justify such excessive entanglement of the state in matters of marriage.

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