Newyorkinsq

This question came up on another board, and I didn't get it satisfactorily
addressed. It's a fairly specific question of law, so lay opinions, however
well-intentioned are unlikely to be of much help.

http://caselaw.lp.findlaw.com/script...tle=8&sec=1325
Section 1325. Improper entry by alien
(c) Marriage fraud
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.

Q: If a USC and a foreign national marry for the sole purpose of later
approaching the BCIS, at that point has the USC committed a crime? (Note "at
that point". I am aware that subsequently falsifying facts and information is
punishable under a separate provision, but in this case assume that only the
marriage has taken place)

(It seems fairly plain that the foreign national has committed a crime, since
they are hoping to "evade" immigration law. But by my reading there is an
arguable case that the USC's purpose is simply "helping to evade" as, by
citizenship, they have no need to evade the immigration laws per se)

Dekka's Angel

Well, I cannot speak about immigration law because I'm not an immigration lawyer.

But in my mind, suggesting that all the USC did in your hypothetical was "only" "helping" someone else "to evade" immigration law by entering into a marriage thathat was not based upon a legitimate intimate relationship is equivalent to saying that the person who loans a bank robber his car is only "helping" someone "to evade" the many laws which prohibit the robbing of banks. What they knew at the time they engaged in the particular act will affect the outcome.

Assuming that they did know the purpose for which they were asked to engage in the act before they did it, IMO the labels to be placed on the conduct are the same. It's called aiding and abetting. Last time I checked that's an independent crime in every state of the union and under the few federal criminal laws as well.

But someone who does immigration law will know the specific answer to your question, no doubt.

David Brown

If you have not filed a single paper yet, nor presented yourself to the INS
for immigration, you are safe. You have not committed a crime yet. You got
married for the wrong reasons, but became scared before the crime was
committed. Do not file any papers with the INS. File for divorce, you have
grounds and it will be granted immediately. "Your honor he wanted me to
commit a crime!" Nothing will happen to either of you. Do exactly what I
said above. Stop bugging everyone with this simple problem that does not
require a response. I suggest you drop it right now.

good luck :-)

David Brown

One more thing learn this line. Memorize it.

"Your honor it sounded so innocent at first, but when I read the papers I
discovered I was about to commit a crime! Please give me an annulment right
now. I want no part of this."

Repeat it to yourself 1000 times, get it down pat. Don't be distracted.
Keep it simple. Explanations will only dig a hole. If questioned, repeat
the line above.

Now go get the divorce. If you don't, you are providing further evidence of
a misdeeds.

Read it again.

David Brown

One more thing....
The 'lawyers' will not answer you. If they do, it would imply an
"attorney client relationship" because you used the word lawyers in the
subject line.

To get lawyers to reply now, you will need money. This is America, and like
in my profession there is professional liability they don't want to incur by
responding. You have not contributed to their malpractice premium!

I hope that helps also. Just take my words and go see your lawyer. Money
well spent. You can get double your money's worth if you see a divorce
lawyer.

Don't talk to anyone! Especially that fake husband. DO NOT TALK ABOUT THIS
to the husband.

Newyorkinsq

    >uggesting that all the USC did in your hypothetical was
    >"only" "helping" someone else "to evade" immigration law by entering
    >into a marriage thathat was not based upon a legitimate intimate
    >relationship is equivalent to saying that the person who loans a bank
    >robber his car is only "helping" someone "to evade" the many laws which
    >prohibit the robbing of banks.

Actually that did occur to me yesterday after I'd asked. Your point is taken.
I suppose though in this case the "help" is so integral to the crime that I'd
expect it to be specifically enunciated in the law. But thanks for the input.

Newyorkinsq

    >Subject: Re: Question for the lawyers on marriage fraud
    >From: "David Brown" [email protected]
    >Date: 3/6/2003 6:30 PM Eastern Standard Time
    >Message-id:
    >If you have not filed a single paper yet, nor presented yourself to the INS
    >for immigration, you are safe. You have not committed a crime yet. You got
    >married for the wrong reasons, but became scared before the crime was
    >committed. D Stop bugging everyone with this simple problem that does not
    >require a response. I suggest you drop it right now.

A very qualified thanks for your responses.

I asked a question of law *one time* in this group to be met with your "Stop
bugging everyone with this simple problem that does not require a response. I
suggest you drop it right now."

If it was so simple, indeed "does not require a response", then one wonders why
it required 3 responses from you. None of which even directly addressed the
question being asked. I said in my query that on another forum "lay opinions,
however well-intentioned [were] not of much help." Your lay opinions, being in
large part patronising and superior, are even less so.

Further:
    > "The 'lawyers' will not answer you. If they do, it would imply an
    >"attorney client relationship" because you used the word lawyers in the
    >subject line."

"lawyer" can mean nothing more evolved than "one versed in the laws" and it was
to those people my query was intended. Note though that even that wide
definition does not seem to be inclusive of you. You seem unable to grasp the
fact that a crime *has* been committed at the point of marriage. Or at the
very least you seem quite unwilling to demonstrate why you believe that it has
not.

Your advice to blandly repeat the same "excuse" ("Your honor it sounded so
innocent at first, but when I read the papers I discovered I was about to
commit a crime! Please give me an annulment right now. I want no part of
this.") to a judge and refuse to explain it, suggests an over fondness on your
own part for typing in advance of thinking. You are aware that it might be
considered outre to plead the fifth amendment in divorce proceedings brought by
oneself? (Note also the limited likely efficacy of asking for an annulment in
the midst of divorce proceedings, as you have also advised above)

Yet another wearying element of your responses appears to be that you are
labouring under the misapprehended assumption that I myself am involved in a
fraudulent green card marriage. I am not. I have been asked for advice on
behalf of a friend, who does not have the money to consult a lawyer or access
to a PC, so on her behalf I am trying to find out what she might incur if she
is fully open in her divorce proceedings.

I want to know if my friend may have committed a crime under:

http://caselaw.lp.findlaw.com/script...tle=8&sec=1325
Section 1325. Improper entry by alien
(c) Marriage fraud
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.

specifically focussing on the legal definition of "evade".

Please bear in mind you are under no obligation to respond even once, never
mind three times, to posts you consider unworthy of this forum. That is a much
quicker way of ensuring their disappearance (what of course it lacks is the
opportunity for you to sublimate your own personal difficulties into an
unwarranted attack on someone else in search of help

And unless someone else chooses to follow your path of obscuring my
straighfforward query by deluging it with a welter of uneducated responses and
ll-informed speculation that is the last time I will ask it here, and thus your
fervent wish that I stop "bugging everyone" by trying to help out a friend will
be fulfilled.

Folinskyinla

Hi:

This lawyer's reaction was "hmm! An interesting question for a first year law student with lots of juicy issues."

For those of you not familiar with an American legal education, the key to the reaction is "first year." It can be analyzed to death. Scott Turrow's first book "One-L" might be instructive reading on this.

When she graduated school, my elder daugther read "One-L" and will be going for a PhD in Chemistry.

Newyorkinsq

    >Hi:
    >This lawyer's reaction was "hmm! An interesting question for a first
    >year law student with lots of juicy issues."
    >For those of you not familiar with an American legal education, the key
    >to the reaction is "first year." It can be analyzed to death. Scott
    >Turrow's first book "One-L" might be instructive reading on this.

Can I take it, from the somewhat oblique nature of your response, that a
previous poster was correct in saying my post implied a request for a "client
attornery relationship" and thus no lawyer would actually answer it without
payment?

I deliberately framed the question as theoretically as possible so as not to
imply I have any expectations beyond an educated opinion. Can I couch the
question in terms which might bring forth a less noncommittal response? All
I'm really asking is for an informed interpretation of an immigration law. Is
that really so bad?

David Brown

Hey sorry I sounded so crazy there, just trying to help.

Folinskyinla

Hi:

I did not make an "oblique answer." I simply didn't answer the question at all.

I'm looking at my criminal law "Hornbook" Perkins on Criminal Law, 2nd Edition, West Publishing 1969.

It is 1035 pages long. Chapter 6 on "Imputability" is 195 pages long. It talks about "The Necessity of an Act," "What constitutes an Act," "Attempt and Kindred Problems," "Negative Acts," "Conspiracy," "Agency," "Coporation," "Parties to Crime," and "Causation."

The next chapter is 100 pages long and is entitled "Responsbility: In General" and discuses Mens Rea, Criminal Neglignece, Sepcific Intent, Other Particular States of Mind, The Citivl Offense, Vicarious Liability, Unlawful Act, Transferred Intent, Motice, Concurrent of Mens Rea and Actus Reus.

This nearly 300 pages of excellent legal prose by the late Prof. Perkins starts out with the simple thing of a criminal act:

"If deaht has resulted from a pistol shot, shall the ACT be said to be 1) killing, 2) impinging the bullet upon the body of the victim, 3) shooting, 4) pulling the trigger, or 5) crooking the finger?"

Read ALL of the above, understand it, then revisit your question. My gut feeling is that your analysis is quite wrong. I just don't care to be a law professor on this issue. If I want to be a law professor, I'd rather talk about the Palzgraf case -- it is a lot more fun to discuss who was right -- Cardozo or Anderews?

If you want another citation to add to your inquiry -- 18 USC 2

Dekka's Angel

Folinskyinla:

Mrs. Palzgraf was, of course. She should have stayed home baking =)

(Fortunately for me that was not the answer I gave in Torts 11 years ago LOL).

Dekka's Angel

DOH.

Not 11 years ago I hate not thinking (I'm studying for updated ethics exam tomorrow to get licensed in a new state and I'm addled!). But it doesn't matter, even though it was *14* years ago Palzgraf will never leave me.

Neither will "Burger King" or the "Flopper".

[Coda: This is sick lawyer humor. All normal folks should ignore it].

Folinskyinla

Hi:

My torts class was 30 years ago. <sigh>. When I attend alumni functions and I'm told that "the law hasn't changed all that much" I respond with "Oh, is contributory negligence still a complete defense?" [I vaguely remember a minority of courts allowing something called "comparative negligence"].

I hate to say that "Burger King" and "Flopper" go over my head.

Not only should have Mrs. Palzgraf stayed home, don't you think fireworks should be outlawed? I sometimes find that the facts of Palzgraf actually make for an interesting party discussion with non-lawyers. Prosser was right in saying it was a law professor's dream of a fact situation coming before a particularly excellent appellate court.

Dekka's Angel

/agree re Palzgraf.

"Burger King" was in 1986 and addressed the federal rule on personal jurisdiction for folks "in transit". My CivPro teacher made us suffer for a week. She was new.

The "Flopper" case, however, is classic Cardozo (Murphy v. Steeplechase Amusement Company, 250 N.Y. 479 (1929)), on assumption of risk. I'm giggling again just thinking about it. I recommend it when you're having "one of those days". =)