DHS Opposition to a Velarde Marriage Motion: Matter of Lamus

Matter of Lamus clarified that the fifth Velarde factor does not allow a motion to be denied merely because DHS files an opposition. The adjudicator must examine the substance of the government’s objections. That distinction matters because DHS may raise procedural defects, evidence of marriage fraud, adjustment ineligibility, or other concerns that genuinely affect reopening. Counsel should therefore respond to the reasons given, while objecting if the decision treats the existence of opposition itself as dispositive.

Lamus modified the practical operation of Velarde’s fifth factor. A post-proceedings marriage motion may not be denied solely because DHS opposes it; the adjudicator must examine the reasons for opposition and determine whether they meaningfully undermine reopening.

Obtain DHS’s position whenever possible and answer it point by point. If the opposition alleges marriage fraud, inadmissibility, procedural default, or lack of adjustment eligibility, submit evidence responsive to that issue rather than relying on Lamus as though it creates a presumption in favor of reopening.

The record should contain the motion, full marriage evidence, I-130 materials, adjustment eligibility proof, DHS opposition, and any reply. If the government relies on prior interview notes, site visits, or adverse statements, seek the underlying material and address it specifically.

Lamus removes an automatic veto; it does not make DHS opposition irrelevant. Persuasive government evidence can still support denial. Likewise, a motion that is untimely, number barred, or otherwise defective remains subject to those independent restrictions.

USCIS retains the petition adjudication, but EOIR evaluates whether the case should reopen. DHS’s litigating position is one part of that EOIR analysis and is distinct from USCIS’s eventual I-130 decision.

The government may present substantive reasons why the marriage appears not bona fide or why adjustment cannot succeed. The respondent should distinguish unsupported opposition from evidence-based objections and respond with record citations.

File a reply when DHS opposition raises new factual claims or legal theories. Lamus is most useful when the adjudicator can see that the government’s objection has been examined on its merits rather than treated as dispositive by label.

The decision should identify the substance of DHS opposition and explain the weight given to it. A statement that reopening is denied because DHS opposes the motion, without more, conflicts with Lamus.

On appeal, quote the portion of the decision showing how DHS opposition was treated. If the adjudicator relied on substantive concerns, address those concerns too; Lamus does not replace the need to prove the other Velarde factors.

DHS opposition can target very different problems. A time or number bar is not answered by additional wedding photographs, and a bona fide marriage concern is not answered by arguing only that the motion was timely. Organize the reply by issue: procedural eligibility, marriage evidence, adjustment eligibility, visa availability, and discretion. This structure helps the Immigration Judge or BIA decide each objection under the correct legal standard rather than allowing one generalized government response to control the entire motion.

If USCIS approves the I-130, schedules an interview, issues an RFE, or takes other material action while the motion is pending, file the development promptly under the applicable procedural rules. A changed petition posture can directly answer an argument that the marriage case is too speculative. Conversely, an adverse USCIS notice should be addressed candidly. Lamus requires substantive evaluation, so the quality and currency of the record matter more than merely showing that a petition remains pending.

Even if DHS’s principal objection concerns marriage bona fides, the motion can still fail if adjustment is unavailable for a separate reason. The reply should identify the respondent’s adjustment provision, jurisdiction, visa availability, admissibility, and any required exception or waiver. This prevents the government from prevailing on an unaddressed ground after the marriage issue is resolved. It also demonstrates that reopening would serve a concrete adjudicative purpose rather than reopen proceedings for collateral litigation with no viable endpoint.

If reopening is denied, the record should show exactly what DHS argued and how the adjudicator evaluated it. A decision that simply cites opposition without engaging its merits raises a different issue from a decision that accepts a specific government objection after analysis. Quote or cite the relevant portion of the government response and request findings on disputed points. That precision is essential if the denial is later challenged as inconsistent with Lamus rather than as a simple disagreement over evidentiary weight. A short reply brief can also identify which objections are legal, which are factual, and which depend on evidence outside the record so the adjudicator does not merge distinct issues.

The 90-day reopening deadline and numerical limits remain central unless a recognized exception or other basis applies. A marriage-based theory does not silently erase those procedural requirements.