BIA Holds That The Immigration Judge May Rely On Fraud Or A Willful Misrepresentation of A Material Fact Made By An Applicant During An Interview Before USCIS To Remove The Conditional Basis Of The Applicant’s Permanent Residence In Assessing Whether the Applicant Has Demonstrated, For Purposes Of Adjustment Of Status In Removal Proceedings, That She is Not Inadmissible Under INA §212(a)(6)(C)(i).
On April 14, 2021 the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by the Immigration Judge (IJ) denying Respondent’s application for adjustment of status (AOS) on the basis that she had failed to establish that she was not inadmissible per INA §212(a)(6)(C)(i), as one who had made a willful misrepresentation of a material fact to procure an immigrant benefit. Respondent had entered the U.S. with a B-2 visitor and subsequently married a U.S. citizen, through whom she filed an AOS application and was granted conditional residence. She and her husband timely filed a joint I-751 petition to remove her conditional status and were interviewed by USCIS, which concluded that their testimony and the evidence they submitted failed to establish that their marriage was entered in good faith; USCIS found that Respondent had not established that she lived with her husband in the same household during the marriage. In particular, her tax returns listed an address different from the claimed marital address.
USCIS also noted that Respondent admitted that she had a child during her marriage who was fathered by the man who became her second husband and that she was unaware that her first husband had been convicted of a criminal offense and sentenced to 2 years of probation the following year. Additionally, USCIS afforded limited weight to the affidavits from their friends and pastor as all were “composed in the same format, with the same font, and the same wording.” The I-751 was thus denied because Respondent “failed to show she entered into her marriage with her first husband in good faith and not solely to evade the immigration laws of the United States.” She was then placed into removal proceedings and charged with deportability under INA §237(a)(1)(D)(i) as one whose conditional permanent residence was terminated.
After she was placed into proceedings, Respondent divorced her husband and remarried, again to a U.S. citizen, who in turn filed an I-130 immigrant visa petition on her behalf, which was approved; she then applied to adjust her status before the court but her AOS application was denied on the ground that Respondent had failed to prove that she is not inadmissible under INA §212(a)(6)(C)(i) in that the IJ found she had “willfully misrepresented the bona fides of her first marriage at her…interview before the USCIS.”
On appeal, Respondent argued that the IJ improperly based his conclusion regarding her inadmissibility on a misrepresentation she had made in a USCIS interview. She contended that the approval of the I-130 filed by her current spouse reflected that her first marriage was bona fide, negating any adverse consequences from that interview and foreclosing the IJ from relying on any misrepresentations made at that time. Additionally, she argued that the IJ erred when he found that her testimony during the removal hearing bolstered the conclusion that she had misrepresented whether and when she resided with her first husband during the USCIS interview. The BIA concluded that Respondent did not establish AOS eligibility in deportation proceedings in that “she failed to demonstrate that she is not inadmissible under section 212(a)(6)(C)(i) of the Act for willfully misrepresenting a material fact to procure a benefit under the Act – based on a misrepresentation she made at her interview with the USCIS, where she sought to remove the conditional basis of her permanent resident status.”
Initially, in discussing the case’s legal background, the BIA explained that the I-751 petition can be based either on a joint filing by the applicant and his or her U.S. spouse or a request for a waiver on 1 of 3 distinct grounds. If USCIS denies the petition, a respondent may seek review by an IJ in deportation proceeding; if the I-751 was jointly filed, “DHS bears the burden to establish, by a preponderance of the evidence, that the facts and information set forth by the joint petitioners are untrue or that the petition was properly denied”, whereas in the case of a negative decision a waiver request, the respondent “may seek review of the denial in removal proceedings where she will bear the burden of proof.”
In its legal analysis, the Board next noted that, in removal proceedings, an applicant bears the burden of establishing her eligibility for AOS but must also demonstrate that she is “clearly and beyond doubt” entitled to be admitted to the U.S. and is not inadmissible under §212(a)(6)(C)(i). As to the current I-130’s approval, Respondent argued on appeal that it proves that USCIS must have necessarily concluded that the “marriage fraud bar” found at INA §204(c), which is triggered when one is found to have entered a prior marriage for the purpose of evading immigration laws, does not apply to her. She contended that this approval “constitutes an implicit determination that her first marriage was bona fide.” While the decision admitted that the bona fides of Respondent’s current marriage are not in dispute, it concluded that whether USCIS invoked §204(c) had no bearing on her admissibility, specifically, whether she made a willful misrepresentation of a material fact at her I-751 interview; the BIA therefore still needed to determine whether Respondent had “met her burden of demonstrating in her removal proceedings that she is not inadmissible” per §212(a)(6)(C)(i).
Regarding this burden, the opinion first went through the Federal and administrative case law defining when misrepresentations are “willful” and “material” and found that the USCIS denial of Respondent’s I-751 petition indicated that she may be inadmissible under §212(a)(6)(C)(i) for seeking an immigrant benefit via fraud or willfully misrepresenting a material fact; she therefore bore the burden of proving, by a preponderance of the evidence, that this ground for denying her AOS application did not apply. In discerning whether Respondent had willfully misrepresented a fact, the Board noted that, during her September 2014 I-751 interview, she had stated that she was currently living with her first husband, but in front of the IJ, “repeatedly testified” that she had lived with him only until May of that year. Thus, found the decision, the IJ “did not clearly err” when he held that Respondent had misrepresented her living arrangements at her September 2014 interview.
Because Respondent’s explanations for the date discrepancies and her testimony about her brief relationship during her first marriage with her current husband, which resulted in the birth of their child, were similarly found to be “unpersuasive”, the BIA affirmed the IJ’s finding that Respondent “failed to demonstrate that she did not make a willful misrepresentation of fact during her USCIS interview.”
Lastly, the Board was “unpersuaded” by Respondent’s contention that her misrepresentation was immaterial; her testimony that she was living with her first husband either had a natural tendency to affect the conclusions the USCIS officer made on the I-751 or “it tended to shut off a line of inquiry that would have disclosed relevant facts”, thus meeting the above-referenced tests set by case law for materiality. The IJ’s conclusion that her misrepresentation was material was thus affirmed. Respondent was found to have made willful misrepresentations about the bona fides of her first marriage, could therefore not prove clearly and beyond doubt that she was not inadmissible under §212(a)(6)(C)(i), and consequently could not establish her AOS eligibility. The appeal was dismissed. Matter of Mensah, 28 I&N Dec. 288 (BIA 2021.)
