Does marriage fraud happen in the marriage, or at the wedding? As it happens, marriage fraud, at least according to the Eleventh Circuit, is a bit of a misnomer - it's really better thought of as wedding fraud.
The statute is 8 U.S.C. § 1325(c). It says that it's a marriage fraud whenever "[a]ny individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." The case is United States v. Rojas.
Ms. Marino is an Argentinian who had overstayed her nonimmigrant visa. Mr. Rojas, as a friend, married her so that she could stay in the country.
The happy day was April 23, 2007.
Two years later, Ms. Marino sent in an application to adjust her status, as a result of her marriage. She sent in a marriage license from April 2007, as well as a list of addresses where she had lived with Mr. Rojas as a married couple.
Folks from Immigration and Customs Enforcement - ICE - interviewed the couple, together.
The interview didn't go well. As a result of discrepancies between what they said, the interviewers decided to interview the couple separately. The two gave different answers about their marriage. One suspects that they were more substantive than whether her favorite flavor of ice cream was really pistachio.
Finally, the ICE agents told the couple that they thought the marriage was a fraud. Both Mr. Rojas and Ms. Marino admitted that it was.
Mr. Rojas signed a statement saying that he and Ms. Marino were just friends - and that he married her so she could stay in the country.
As often happens when folks volunteer information about their own criminal conduct, law enforcement responded charitably - the government indicted Mr. Rojas.
The indictment came on April 27, 2012.
This was, of course, five years and four days after April 23, 2007 - the day the couple were married.
Mr. Rojas filed a motion to dismiss the indictment, which was denied.
On appeal, the Eleventh Circuit, per curiam, in an opinion that didn't require argument, held that the crime of marriage fraud is completed on the day that the couple enters into the marriage.
This is because the criminal conduct is "knowingly enter[ing] into a marriage" that's a sham to defeat immigration laws.
The government argued that the crime of immigration fraud was not complete until the couple lied to the government about the purpose of the marriage. That, after all, is when the government first learned that a crime had happened.
Since the purpose of entering in a sham marriage - according to the government - is to lie to immigration, the couple has to actually finish lying to immigration for the crime to be done.
The Eleventh Circuit rejected this argument.
To prove marriage fraud, the government must show that (1) the defendant knowingly entered into a marriage (2) for the purpose of evading any provision of the immigration laws.2 See 8 U.S.C. § 1325(c). It is undisputed that Rojas and Marino married on April 23, 2007. It is likewise undisputed that Rojas, at the time he entered into the marriage, did so for the purpose of violating the immigration laws--namely, using the marriage to adjust Marino's immigration status. Filing for immigration benefits may serve as circumstantial evidence of the defendant's unlawful purpose and may lead, as it did in this case, to charges and prosecution for making a false, fictitious, or fraudulent statement to DHS, in violation of 18 U.S.C. § 1001(a)(2). The plain language of the marriage fraud statute, however, cannot plausibly be read to require that a defendant take the additional step of filing for immigration benefits in order for the crime to be complete.
The district court abused its discretion by holding otherwise.
So, Mr. Rojas is free to go. Though I suspect that the statute of limitations on lying to the ICE investigators may not have run yet.