1986 marriage-fraud law is too flawed to stand, attorney says

With weighty questions about the legality of certain marriages consuming national attention-specifically, the U.S. Supreme Court's current consideration of gay-marriage issues-another legal question about marriage recently arose in Maryland federal court: What is a criminally fraudulent marriage?

"Sham" marriages entered into so that immigrants can get green cards are banned under federal law, but in defending a Turkish man accused of breaking that law, immigration attorney Hassan Ahmad says the 1986 statute is unconstitutional because it fails to define what such a marriage actually is.

Is it a crime, for instance, to marry whenever the desire to get immigration benefits is part of the mix of reasons? Or is it a crime only when that's the sole reason? Laws should not criminalize such nuances without clearly spelling out what the threshold of offending conduct is, Ahmad maintains in a 32-page motion he filed on March 3.

Ahmad's client, 30-year-old Fatih Sonmez, met Tina Eckloff at a bar in Maryland in 2007. The two started dating, moved in together, got married the next year, and then applied for immigration benefits-something Sonmez needed, having long overstayed his tourist visa. The marriage disintegrated quickly into such acrimony that Sonmez applied as an "abused spouse" for lawful permanent residence, and the two were divorced in 2011. But immigration authorities suspected before then-starting in 2010-that their marriage was a sham.

Sonmez, Eckloff, and four others were indicted in two related cases last December, based on evidence that they'd facilitated sham marriages. On Jan. 10, search warrants in the case were executed in the early morning hours, including at homes in Dundalk, Crofton, Severn, and Hanover.

Ahmad says his research into the law they were charged under-8 U.S.C. 1325(c)-found that Congress was concerned about criminalizing two scenarios: marriage-fraud rings, in which payments are made in return for help navigating the perilous waters of tricking immigration authorities into believing a marriage is bona fide; and deceptive marriages, in which a foreign national woos a U.S. citizen into falling in love, then promptly leaves the spouse at the courthouse steps, or shortly thereafter.

In both cases, Ahmad says, "there is clearly no intent to establish a life together." In many instances, though, people do intend to establish a life together, and the desire to get a green card may be part of the mix of reasons they choose to do so. Yet, despite these "shades of grey," Ahmad says, prosecutors may level fraudulent-marriage charges "any time they see there's an intent to evade immigration laws," even though other legitimate motivations may be in play.

Ahmad raises several hypothetical scenarios in his motion to have Sonmez's indictment dismissed. Is it illegal, for instance, for a couple who's been dating to get married when, suddenly, immigration issues threaten an imminent and permanent separation if they don't? Or what about an arranged marriage, when a U.S. citizen relents to cultural pressures from her family to marry a cousin who needs immigration benefits? How about an illegal alien who initially goes spouse-hunting in hopes of marrying for a green card, but ends up falling in love and setting up a life with the person they marry?

"If 'marriage fraud' is defined only as evading any provision of the immigration laws," Ahmad writes in his brief, "then all three hypothetical couples could face up to five years in prison. Yet it was never Congress' intent to criminally punish the hypothetical parties above."

Ahmad points out that appellate courts around the country are split on the question, with some saying any intent to evade immigration laws is sufficient to find criminality, and others saying it needs to be the sole purpose of the marriage. This split arises in part "because Congress never came out and said what marriage fraud is," Ahmad says. As he writes in his brief, "if our learned federal appellate judges cannot agree, how can 'people of ordinary intelligence' be sufficiently apprised of the proscribed conduct?"

The prosecutor in the case, Assistant U.S. Attorney P. Michael Cunningham, has not yet responded to Ahmad's motion. In 10 years working as an immigration attorney, Ahmad says this is the first time he's attacked the marriage-fraud law's constitutionality in court, and he's pleased that U.S. District Judge Richard Bennett will have an opportunity to hear the argument.

"We'll see how it comes out at the end of the day," he says.

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