A common practice of INS officers when investigating marriage based visa petitions is to show up at the couples home, often in the early morning and always without warning, in order to search the home to uncover evidence that the marriage is not real. These searches are typically justified by the INS, after the fact, by the general statement that “due to inconsistencies in the answers provided during the interview, further investigation was warranted.” The INS almost never identifies the inconsistencies and I for one am convinced that the so called “inconsistencies” are never sufficient to justify an intrusion into the couples home. For instance, in one case where the INS did identify one of these inconsistencies, the wife had said that her husband’s eyes were black when, according to the INS investigator, the husband’s eyes were really dark brown — and this was used as a reason not only to justify their investigation of the couple’s home, but ultimately to deny the visa petition!
Such practices are obviously not only ridiculous, but reprehensible, since they result in the denial of perfectly valid visa petitions thereby forcing the couple to either incur thousands of dollars in attorneys fees to fight the INS’ decision or give up on their marriage. Of course, if they cannot afford to appeal the INS’ decision, their marriage is almost certainly doomed to failure since the alien spouse will be forced to return to his or her home country.
I for one am tired of seeing marriages destroyed by the INS and have written an open letter to Doris Meissner, Commissioner of the INS, and Richard Rogers, District Director of the Los Angeles District Office demanding that they immediately stop these unconstitutional searches. My letter is reproduced elsewhere in this paper. However, as it is with many things, perhaps the best defense to this conduct is to be aware of your constitutional rights protecting you against this conduct. If the INS shows up at your door, you do not have to let them in — so don’t. In other words, “Just say no.” If you are represented by an attorney, you should tell the INS you are represented and also tell them that you refuse to be interviewed without your attorney present.
The Fourth Amendment of the United States Constitution protects all people living in the United States against unreasonable searches and seizures. If the INS wants to search your home, they must first receive your permission to do so. The only way they can search your home without your permission is to obtain a warrant from a judge, and a judge is certainly not going to issue a search warrant just because your spouse said that your eyes were black when they were really dark brown.
The Fifth Amendment of the United States Constitution also protects your ongoing relationship with your attorney. If you are represented by an attorney, any attempt by the INS to interview you without your attorney, unless of course you consent to the interview, is a violation of your due process rights under the Fifth Amendment. Of course, I strongly advise that you never consent to be interviewed without your attorney, if the INS shows up at your home.
If you or someone you know has a pending visa petition based on a marriage, you should keep the above advice firmly in mind. If you have already been interviewed by the INS and you have not received an approval notice, chances are good that they will be visiting your home some time in the near future. Once this happens, the best way to protect your rights is to never let them in the door.
However, if you have already been victimized by one of these searches, I strongly suggest that you contact my office. As I have indicated in my open letter to Commissioner Meissner and District Director Rogers, I am currently looking for victims of this conduct who are interested in suing the INS for violating their constitutional rights. Remember, if INS comes knocking at your door, “just say no.”