USCIS’s war on marriage

Sunday, February 1st, 2015
By: Jonathan MontagJ.D.

We’ve all heard about all the faux wars going on these days – class warfare, the war against the job creators, the war on Christmas. There are a lot of wars to be paranoid about that don’t exist. It is time for those skeptical of big government to examine a real government war, USCIS’s war on marriage. This is a war on good marriage while in pursuit of marriage fraud.

I am no expert on test making theory. However, one thing I know about testing is that you can design the sensitivity of a test. Let’s say you want to test for something like marriage fraud. You can design a test that finds nearly 100 percent of marriage fraud cases, but also finds a great number of false positives, meaning a lot of people in real marriages are determined to be in fake marriages. You can make a test that nearly never wrongly determines that fraud exists, but also allows actual fraudulent marriages to escape detection. It is probably impossible to design a test that detects only fraudulent marriages.

Think of yoghurt. We sometimes hear reports that the USDA allows X parts per billion of rat poop in yoghurt and wonder why they allow any. The answer is that the more stringent the test, the more good yoghurt that will get thrown out and throwing out good yoghurt for infinitesimal gains in purity is insane.

Why can’t USCIS catch all fraud but deny no deserving green card applicant? One reason is it is impossible to test what you are looking for. The standard definition of a real marriage in the 9th Circuit is one where the parties to it intend to spend their lives together. You know, till death do us part. The Ninth Circuit wrote in analyzing a case where the government denied a married foreign man a green card based on marriage:

Petitioner’s marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married. 

While the validity of that definition is debatable (the guy in Cleveland who had women chained in his basement for years intended that the relationships were permanent), let’s just stick with it. How do you measure the intent to remain together? It is a state of mind so it has no obvious physical metrics. There are some outward manifestations – buying life insurance with the spouse as beneficiary (you acknowledge that at the end, your spouse will still be there). Getting a 30 year mortgage together (you acknowledge that in 30 years you’ll still be together – thirty a proxy for infinity). Sleeping in the same city. In the same home. In the same bed. Of course these are not proof of the existence of marriage. You can cancel insurance and re-finance a mortgage or sell a home. Further, you can easily buy insurance or buy a home to give the appearance of being in a real marriage. Most Senators and Congressmen and Congresswomen, who write the immigration laws, do not live with their spouses as they cannot afford to or do not want to set up two households, one in Washington and one in their constituency, and they commute home periodically. With all the writing about sleep disorders and prescriptions for cures for sleep disorders like those CPAP machines, one imagines plenty of otherwise normal married couples sleeping separately at least some nights or some parts of some nights.

There is something else I know about test making. For a test to be successful, you need to know what you are testing for and then test for it. If the goal of the test is to determine whether a couple intends to establish a life together, then test makers need to find ways to test for that question. In the case of USCIS and marriage fraud, it is apparent to me, test makers make assumptions about marriage that stand as proxies for “intending to establish a life together” and then test the assumptions. Couples, they assume, live together, spend their free time together, recreate together, share all the details of their lives together such as all that goes on in the spouse’s family and all medical issues, share all financial information, the complete family history, and everything about work and any outside-the-home activities.

Are all of these true all of the time or some of the time for all people? For some people? For any people? Moreover, how much is a person supposed to remember? Do normal people normally remember what their spouse wore to bed a week earlier or even a night earlier, what they gave and got for Christmas, or what they ate for dinner a week earlier or even a night earlier? I’ve seen members of couples denied permanent residence for forgetting one dish on an Easter buffet table, what they ate on their second date two years earlier, and that they stopped for to buy milk on the way home from an outing. (Is it always food that disqualifies couples or am I just hungry after sitting through the five hour auto de fes that USCIS conducts in these cases?) Is this because they really don’t intend to establish a life together, or because they are not interested in what USCIS thinks they should be interested in, or that they just forgot?

In addition to the question of what the value of the test of these trivia proxy questions is in answering the question about whether members of a couple intends to spend their lives together, should people be subjected to such personal questioning – which does include questions about sexual activity?

Finally, because USCIS holds people to near-perfect scores on these tests which requires to conforming to assumptions about what a marriage should be like and requiring that a marriage be firing on all cylinders (one who hints at ambivalence about married life is bound to be denied a green card), USCIS imposes a way  to be married and way of life on couples. Should an agency be able dictate how a couple lives their lives (together always in the close embrace of an approving extended family), what their lifestyle should be (opulent enough for a large wedding, a nice honeymoon, a heavy engagement ring and matching marriage bands, memorable holiday presents, no roommates, exciting and memorable weekend activities, children) how much time they spend together (all their free time), what they should do with their free time (engaging with each other’s families, studying the household budget, and planning glorious holiday parties, all the while snapping photos at any opportunity and committing to memory every joint experience, a la Adrian Monk)? This is what the Ninth Circuit wrote about such an imposition on couples:

The concept of establishing a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead. Any attempt to regulate their life styles, such as prescribing the amount of time they must spend together, or designating the manner in which either partner elects to spend his or her time, in the guise of specifying the requirements of a bona fide marriage would raise serious constitutional questions. Aliens cannot be required to have more conventional or more successful marriages than citizens. 

I do not think USCIS should approve all marriage-based permanent residence applications without there first being investigation into the possibility of fraud. However, USCIS should realize that its methods are not testing for what they are looking for and thus are failing – people involved in good marriages are being denied while fraudsters are getting green cards. All the while, nice people are being subjected to oppressive, intrusive interviews, and months and years of stress – these cases go on for months and years. Many suffer under the prolonged uncertainty, anxiety, and cost of a protracted fight with the government about their marriage – paradoxically continuously both fearing and hoping for a knock at the door at 6 in the morning by officers coming to look at where the couple lives rather than making conclusions about a marriage based on questions about some triviality about a sibling’s sister’s age or whatever. Many cave, break up, and the alien returns home. USCIS should not score this as success, but for what it is, failure. Blackstone’s formulation, “”It is better that ten guilty persons escape than that one innocent suffer,” is based on avoiding injustice to the innocent even if it has adverse consequences. USCIS is imposing suffering on ten innocent people so they can detect one guilty one. This policy choice right-minded people should reject. Posted February 1, 2015.


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