However, she is currently separated from him. My daughter was told by a lawyer in Florida that her application is no longer valid because it would require BOTH my daughter and her husband to appear before an immigration official to obtain conditional permanent residency. This issue was discussed in several Federal Court of Appeal decisions. But evidence of separation, standing alone, cannot support a finding that a marriage was not bona fide when it was entered. The inference that the parties never intended a bona fide marriage from proof of separation is arbitrary unless we are reasonably assured that it is more probable than not that couples who separate after marriage never intended to live together.
Common experience is directly to the contrary.
Couples separate, temporarily and permanently, for all kinds of reasons that have nothing to do with any preconceived intent not to share their lives, such as calls to military service, educational needs, employment opportunities, illness, poverty, and domestic difficulties. Of course, the time and extent of separation, combined with other facts and circumstances, can and have adequately supported the conclusion that a marriage was not bona fide. We decline to speculate about the conclusion that would have been reached if the Service had confined itself to evidence relevant to the parties' intent at the time of their marriage. The Service will have an opportunity on remand to develop the record in accordance with the views herein expressed. The INS, it is important to note, never has claimed or proved that Dabaghian's first marriage was a sham or fraud when entered.