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Most married sweeties send their honey chocolates or flowers on Valentine’s Day. But Antoinette Walters Janda filed for an annulment of her sexless marriage on Feb. 14, 2007, claiming that her husband, Jiri Janda, married her with no intention to honor his marital obligations — most notably the time honored tradition of marital intercourse. And, annulment could mean deportation for the ex-husband. Let me explain.
The couple married on June 5, 2005 after only a few months of courtship. Immediately following the marriage ceremony, Jiri (the husband) refused to share a bed with his wife. Antoinette (the wife) testified that throughout their marriage, she and Jiri had never had a sexual relationship of any kind. Antoinette even lost 65 pounds to be more appealing to Jiri! Antoinette alleges that Jiri, a native of the Czech Republic, fraudulently induced her to marry him only so that he could obtain a "green card," which would permit him to remain in the United States.
An annulment of a marriage rather than a divorce, from a U.S. citizen’s perspective, has few noteworthy consequences. However, for someone like Jiri, who wishes to immigrate to the United States on the basis of marriage to a U.S. citizen or lawful permanent resident (LPR), the difference will have significant legal consequences. Here, the decision of an annulment rather than a divorce makes a huge difference to Jiri because now, he could likely lose his conditional, permanent resident status under U.S. immigration laws and be deported back to the Czech Republic.
I know that deportation may sound a bit harsh, but a marriage should not be taken lightly either. I think there will be little sympathy for Jiri if the circumstances are that he committed marriage fraud in the first place to allow himself to stay lawfully in the United States.
The court in Jiri’s case recognized that “traditionally, a sexual relationship is implicit in marriage vows and that an unstated intent, held at the time of the marriage ceremony, to utterly refuse to engage in a sexual relationship with the other party is a fraud that alters the very essence of the marriage.”
The trial court entered an order annulling Antoinette and Jiri’s marriage on May 8, 2007, specifically finding that the parties had not consummated the marriage and had not acted as a married couple, but had acted more as roommates, during their marriage. They held that for the marriage to be a bona fide one, or one entered into in good faith, the parties must intend to establish a life together at the time they were married.
As you can imagine, this is not the first time the courts and immigration officers are faced with the problem of sham marriages. Congress stepped in to help prevent situations like these. The Immigration Marriage Fraud Amendments of 1986 (IMFA) added provisions aimed at deterring and detecting fraudulent marriages more effectively. Under the most important provisions of IMFA, all persons who obtain lawful permanent resident status, based on a marriage that is less than two years old at the time, receive such status only on a conditional basis. This conditional status, although in every other way the legal equivalent to full permanent resident status, expires after two years.
During the last three months of the two-year period, a "joint petition" must be filed and signed by the husband and wife, which must document that the marriage was not entered into for immigration purposes. Supporting documentation may include joint tax returns, bank statements, utility bills, insurance policies, and other evidence of financial commingling. In really "strong" cases, evidence may include a deed to real property (the family home) or a baby's birth certificate, all of course in the names of both husband and wife.
On the other hand, during the two-year period, the Department of Homeland Security (DHS) may terminate the permanent resident status if it finds that the underlying marriage was improper or solely for immigration purposes. It is not necessary for the parties to have a conventional marriage, be living together or even have a viable marriage, although the absence of such will lead to closer scrutiny and a more lengthy investigation. At the end of the two years, DHS removes the conditional basis if it finds that the underlying marriage was valid and has not ended. The removal signifies that the conditional period is over and the noncitizen has graduated to full permanent resident status.
In addition to being deportable, IMFA has established criminal sanctions for involvement in marriage fraud with penalties up to five years imprisonment and a fine of $250,000. This is, however, not meant to discourage anyone from dating or marrying a foreign spouse as long as the marriage is bone fide. As a policy of promoting family reunification, more than one-third of the immigrants who enter the United States each year have already done so on the basis of their marriage to a U.S. citizen or legal permanent resident. But no sham marriages!
Click over to read Lis' column, "Lis and the Single Girl."
Today, Lis answers this viewer question:
Lis, the other day I received an overpriced, absolutely horrible haircut that made me want to cry when I walked out the door. To make matters worse, I spent a fortune. I admit that it was from a salon I had never been to before, at a place I had never been before, but they came highly recommended. But shouldn’t I expect at least an adequate haircut? Read more
• Alabama Appeals Court Ends Sexless Marriage
• T. Alexander Aleinikoff, David A. Martin, and Hiroshi Motomura, Immigration and Citizenship: Process and Policy (5th Edition 2003)
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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.