Prosecuting sham marriage under 18 U.S.C. [section] 1546: is validity of marriage material?

AuthorThomas, Brian
  1. INTRODUCTION

    According to United States law, an alien may obtain permanent resident status by marrying a United States citizen. (1) Consequently, some people abuse this privilege by knowingly entering a "sham marriage," an illegal practice whereby an alien marries a citizen for the sole purpose of gaining citizenship. (2) Most sham marriages involve an alien paying an American upwards of $10,000 to enter the marriage, and the marriage is annulled shortly after the immigrant gains legal citizenship as result of the union. (3) In response, Congress enacted legislation that put severe restrictions on the benefits enjoyed by an alien who marries a citizen. (4) Despite Congress' efforts, the sham marriage is the most common way immigrants attempt to gain United States citizenship illegally, posing a serious threat to the immigration process. (5)

    The Supreme Court of the United States addressed sham marriage prosecution for the first time in the 1953 case, Lutwak v. United States. (6) Subsequently, circuit courts adopted conflicting interpretations of how the Lutwak holding should be applied to prosecution under 18 U.S.C. [section] 1546, a modern statute that punishes sham marriage participants for falsely representing their marital status for immigration purposes. (7) Specifically, the circuit courts disagree on how the Lutwak court's declaration that "we do not believe that the validity of marriage is material" should be applied to sham marriage prosecutions for false representation under 18 U.S.C. [section] 1546. (8) Circuits adopting the "literal interpretation" of Lutwak apply it universally, holding that validity of marriage is immaterial in all sham marriage prosecution, including false representation charges under 18 U.S.C. [section] 1546. (9) In contrast, circuits following the "narrow interpretation" hold that the defendants in Lutwak were not prosecuted for false representation of marital status, but instead for suppressing facts that indicated their marriage was a sham, constituting illegal concealment of a material fact. (10) According to this view, the Lutwak decision held that marriage validity is immaterial only when prosecuting sham marriage participants for concealment of a material fact, and therefore the validity of marriage is material when prosecuting participants for other crimes such as fraudulent misrepresentation under [section] 1546. (11)

    This note focuses on the conflicting interpretations of how Lutwak should be applied to sham marriage prosecution under modern statutes, and more specifically, whether the validity of marriage is material in prosecutions under 18 U.S.C. [section] 1546. Part II first offers a summary of sham marriage prosecution, including investigatory procedures and relevant statutes. (12) Part II then explores the Lutwak decision and the body of case law decided in its wake, focusing on conflicting stances taken by circuits on whether the validity of marriage is material to sham marriage prosecution under [section] 1546. (13) Part III weighs the merits of each approach, and ultimately supports the "literal approach" because it adheres to Supreme Court precedent and reflects congressional intent. (14)

  2. SHAM MARRIAGE PROSECUTION UNDER 18 U.S.C. [section] 1546: IS MARRIAGE VALIDITY MATERIAL?

    1. The Sham Marriage

      The United States grants citizenship to alien spouses of American

      citizens, (15) however, the Supreme Court of the United States acknowledged the authority of the Immigration and Naturalization Service (INS) to with-hold this privilege from aliens who marry for the purpose of gaining citizenship. (16) Generally, the government establishes the existence of a sham marriage by using evidence that proves the union was transactional and not genuine. (17) Consequently, the INS conducts questioning of both spouses to determine if the marital relationship is "bona fide" for immigration purposes or merely contrived to avoid immigration laws. (18) According to the Supreme Court, a marriage is bona fide for immigration purposes if it falls within "the common understanding of a marriage," in which "two parties have undertaken to establish a life together and assume certain duties and obligations." (19) The bona fide status of a marriage under immigration law is evaluated differently than the validity of a marriage under state and federal law; therefore, a marriage that is valid under state law does not necessarily meet the federal immigration standard for a bona fide marriage. (20) Instead, whereas marriage validity under state or federal law hinges on the procedural steps a couple took in order to obtain lawful marital status, a bona fide marriage for immigration purposes depends on whether the couple joined together as husband and wife as that union is commonly understood. (21)

      The central inquiry as to whether a couple entered a bona fide marriage for immigration purposes is the couple's intent at the time of their union; specifically, whether the bride and groom intended to establish a life together at the time they entered into marriage. (22) The INS may inquire into the couple's behavior before and after marriage, but such activity is only relevant to the extent that it relates to their intent at the time of marriage. (23) In particular, when determining if a couple entered a sham marriage, the fact-finder must evaluate the credibility of the parties, examine their conduct around the time of the marriage, and scrutinize the circumstances surrounding the marriage. (24)

      If the INS establishes reason to doubt the legitimacy of an alien's marital relationship to a citizen, the alien must introduce evidence proving that the couple did not intend to dodge the immigration laws. (25) Such evidence may include, but is not limited to, proof that the petitioner listed his spouse on numerous legal transactions, as well as testimony regarding courtship, wedding ceremony, shared residence, and common experiences. (26) Consequently, if the couple cannot rebut the charge that their marriage is a sham, they may be subject to various sanctions, including removal and criminal penalties. (27)

    2. Prosecution Under 18 U.S.C. [section] 1546

      18 U.S.C. [section] 1546(a) punishes aliens who knowingly subscribe as true any false statement with respect to a material fact in any documentation required by immigration laws. (28) As a result, sham marriage participants violate 18 U.S.C. [section] 1546 by claiming they engaged in a bona fide marital union when in fact their marriage was meant only to confer citizenship on the alien spouse. (29) In that situation, the couple's assertion that their marriage is bona fide is a material fact that is knowingly misrepresented to the government. (30) In addition, a person who assists a violator of 18 U.S.C. [section] 1546 may be convicted as an aider and abettor of that crime. (31) Finally, under some circumstances, sham marriage participants convicted for false representation under 18 U.S.C. [section] 1546 may also be convicted under other related statutes. (32)

    3. Conflicting Jurisdictional Approaches: Interpreting Lutwak v. United States

      The United States Circuit Courts of Appeals disagree on whether the validity of marriage is material where a sham marriage participant is charged with violating 18 U.S.C. [section] 1546. (33) Specifically, the circuits diverge on the meaning of the Supreme Court's declaration in Lutwak that "we do not believe that the validity of marriage is material" in sham marriage prosecutions for false representation under 18 U.S.C. [section] 1546. (34) Circuits adopting the "literal interpretation" of Lutwak hold that the validity of marriage is immaterial in all sham marriage prosecution, including false representation charges under 18 U.S.C. [section] 1546. (35) In contrast, circuits following the "narrow interpretation" construe the Lutwak decision as holding that marriage validity is immaterial only when prosecuting sham marriage participants for concealment of a material fact, and therefore the validity of marriage is material when prosecuting participants for other crimes such as fraudulent misrepresentation under [section] 1546. (36)

      1. Lutwak v. United States

        In Lutwak, five defendants carried out sham marriages through which two aliens gained illegal admission pursuant to the War Brides Act, (37) a statute which permitted alien spouses of honorably discharged veterans of World War II to enter the country.38 One defendant, an honorably discharged veteran, traveled to France and married an alien for the sole purpose of obtaining admission for that alien in the United States. (39) Similarly, two defendants paid two veterans to travel abroad and marry aliens for the same illegal purpose. (40) Upon arriving in the country, the three arranged couples deceived immigration authorities by claiming a desire to live together in the United States as husband and wife, when they had no intention of doing so. (41) True to their plan, the couples never consummated their marriages and separated shortly after gaining citizenship and entry to the country. (42)

        The Lutwak court affirmed the defendants' conviction for conspiring to defraud the United States in violation of 8 U.S.C. [section] 220(c), (43) the since repealed predecessor of 18 U.S.C. [section] 1546, which also forbade entry into the United States by false statement or misleading representation. (44) The Supreme Court reasoned that when Congress enacted the War Brides Act to confer citizenship to "alien spouses" of veterans, Congress intended the common understanding of marriage, in which two parties undertake to establish a life together and assume certain duties and obligations. (45) Therefore, when each couple told immigration officials they were married and omitted the true transactional nature of their marital relationship, they falsely represented that they shared a bona fide marriage as required by the statute. (46) In turn, their statement constituted a false...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT