An American woman seeking an annulment from her foreign-born husband could end up turbocharging the government’s crackdown on marriage fraud.
For the first time in U.S. history, the Board of Immigration Appeals (BIA) will decide if Americans can appeal previously-approved I-130 petitions based on new evidence of marriage fraud, according to legal documents exclusively obtained by the Daily Caller News Foundation. The case — which involves a naturalized American citizen who claims her Chinese husband married her solely for a green card — could carry enormous national impact.
Marriage-based petitions are the single largest category of green cards, according to government data. The BIA, tasked with reviewing decisions by the U.S. immigration court system, has only ever been used to help foreign nationals appeal denials — until now.
“The Board of Immigration Appeals will decide whether its regulation allows U.S. citizens to challenge previously approved marriage petitions based on newly discovered fraud — bringing needed sunlight to a secretive process that has allowed fraud to fester inside DHS [Department of Homeland Security] for decades,” Cody Brown, the attorney for the petitioner, stated to the Daily Caller News Foundation.
The wife — who agreed to share her appeal with the DCNF on the condition of anonymity — is seeking an annulment from her husband based on alleged marriage fraud. In legal filings to the BIA, she presented evidence that alleges her husband had a premeditated plan to obtain legal permanent status while on a temporary visa, took advantage of her while she was healing from an injury and was heavily medicated, but showed no interest in the marriage one he obtained a green card.
What makes her case unique is that she is appealing an already-approved I-130 petition, which is a form filed with U.S. Citizenship and Immigration Services (USCIS) by an American citizen or lawful permanent resident for a relative who wishes to immigrate to the U.S. Throughout its history, the BIA has only considered petitions that were denied by USCIS.
At the center of the case is one regulation which grants the BIA appellate jurisdiction over DHS “decisions.” Brown is arguing that the term “decisions” includes both denials and approvals. Should the BIA rule in Brown’s favor, he expects immigration officials to more openly review already-approved petitions if and when a sponsor complains.
“This is a critical test of whether the Trump administration is serious about enforcement beyond the border,” Brown told the DCNF. “Declaring a ‘war on fraud’ means little if career staff inside DOJ [Department of Justice] and DHS can quietly shield fraudulent approvals from review.”
A History Of Little Enforcement
Marriage fraud is a serious crime under U.S. law that can render a guilty immigrant ineligible for benefits, but activists have long argued that federal agencies are not prioritizing the issue.
Marriage is the largest pathway to lawful permanent residence for migrants, according to DHS data. Of the nearly 1.2 million migrants who obtained a green card in fiscal year 2023, more than 755,800 were sponsored by a family member, with 276,080 of them being sponsored by a spouse. However, available data demonstrates that virtually zero enforcement is made against marriage fraud.
USCIS, the agency tasked with managing the country’s legal immigration system, does not regularly publish fraud denial statistics, but data obtained in a Freedom of Information Act (FOIA) request and shared in the petitioner’s legal documents sheds light on the subject.
USCIS marriage-based immigration adjudications. Screen grab from court documents.
Between fiscal years 2016 and 2019, federal immigration officials issued virtually zero denials among the five principal forms used in marriage-based immigration adjudications, according to FOIA data.
Agency insiders say lack of enforcement against marriage fraud has been a pervasive issue for years.
“USCIS and DOJ have known about astronomically high rates of marriage fraud for decades,” Matt O’Brien, former chief of the National Security Division within USCIS’ Fraud Detection and National Security Directorate, said to the DCNF. “But pressure from pro alien groups and DOJ’s refusal to prosecute any fraud cases that are not a guaranteed win have created a permissive environment where there has been virtually no consequences for entering into a fraudulent marriage to get a green card.”
“And this, in turn, feeds into the fraudulent exploitation of other programs like Violence Against Women Act petitions — which allow an alien to obtain a green card on the basis of alleged domestic abuse — without any consideration of the sponsoring U.S. citizen’s side of the story,” said O’Brien, who now serves as a executive deputy director of the Federation for American Immigration Reform.
As the managing attorney of a law firm that specializes in representing clients who are victims of immigration fraud, Brown is no stranger to the issue. In July, he led a group of marriage fraud victims in a petition that demanded federal immigration authorities adopt a formal process allowing Americans to blow the whistle against marriage-based green cards upon new evidence of fraud.
Evidence of one-sided marriage fraud typically emerges only after a petition has been approved, leaving victims with little avenue for recourse given there is no formal process for post-approval review.
“If a foreign national has a benefit denied, there are 10 ways to fight it,” Brown said at the time of his request. “But if a U.S. citizen discovers fraud after the fact, they’re told to submit a tip and hope for the best.”
Trump Administration Cracking Down On Fraud
The Trump administration — which has championed enforcement against illegal immigration — has begun to take actions against marriage fraud.
USCIS dismantled a major domestic marriage fraud network in March. The agency worked alongside Immigration and Customs Enforcement to uncover a “sophisticated network of individuals” involved in the rampant scheme that allegedly generated millions in illicit revenue. The individuals behind the scheme allegedly charged foreign nationals anywhere from $20,000 to $40,000 per marriage union, generating an estimated $4 million in illicit proceeds.
However, this operation targeted a classic sham marriage scheme. One-sided marriage fraud cases can be much tougher for authorities to address.
Upon his return to the agency earlier this year, USCIS Director Joe Edlow told the DCNF that he quickly discovered just how little was done to address immigration fraud during the Biden administration’s four years in power. Edlow has since buckled down on asylum fraud, identified discrepancies in immigration programs, tightened election integrity and vowed to do more.
Immediately after President Donald Trump entered office, his administration fired top immigration court officials and, in April, enacted another round of layoffs within the immigration court system, ostensibly removing judges who are not aligned with the president’s agenda.
President Donald Trump has overseen unprecedented reductions in illegal immigration, with Customs and Border Protection officials declaring record-low activity along the U.S.-Mexico border since his return to office. Brown argues that changes to marriage fraud enforcement naturally align with Trump’s hawkish agenda.
When reached for comment, the Executive Office for Immigration Review (EOIR), which is the parent agency of the BIA, acknowledged that it has jurisdiction over family-based immigration petitions, but referred questions over petition approvals to DHS. An EOIR spokesperson further stated that the agency has “long remained” alert against immigration fraud and that it “recently re-confirmed” its commitment to an anti-fraud program.
(Featured Image Media Credit: Immigration and Customs Enforcement/X)
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