On October 30, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an I-130 petitioner who sought to classify her husband as her Immediate Relative spouse. The USCIS Field Office Director (FOD) had denied the petition under INA §204(c), claiming that the beneficiary’s prior marriage was fraudulent and entered into to obtain an immigration benefit because his first wife’s I-130 on his behalf was denied for “insufficient evidence of a bona fide marital relationship.” The interview regarding the first visa petition had resulted in “discrepancies in the answers given by the beneficiary and his first wife regarding their courtship, marriage, and family matters” and prompted a site visit by USCIS that revealed that the first wife did not live with the beneficiary at the claimed marital address and that they “had given significantly inconsistent details about their living arrangements and life together.” The FOD denied the visa petition, holding that the petitioner had not demonstrated the marriage was bonafide; about seven months later, beneficiary and his first wife divorced.
The current petitioner married the beneficiary fifteen months later and filed an I-130 on her husband’s behalf a little over two years after that. At their interview, the beneficiary was questioned about his prior marriage; the next day, the FOD issued a Request for Evidence (RFE) asking for evidence proving the beneficiary’s first marriage was valid. Petitioner submitted a letter explaining that she has seen the beneficiary (then just a friend) and his then-wife together, had started dating him after his divorce, and “she deleted records and pictures of the former couple from the beneficiary’s cell phone and computer out of jealousy.” The petitioner also filed a letter from the beneficiary describing his first marriage and stating that he had not taken his first adjustment of status process seriously; she also provided a letter from the pastor who officiated at the beneficiary’s first wedding, stating that he had visited the couple at home and they were living as husband and wife.
The FOD then issued a Notice of Intent to Deny (NOID) discussing issues raised during the adjudication of the first visa petition, noting that the beneficiary’s answers to questions about his first marriage were “inconsistent and lacking in detail”; he also stated that approval of the 2nd I-130 appeared to be barred by the INA §204(c). In response, petitioner offered a psychological report claiming that the beneficiary has significant memory problems as a result of a traumatic brain injury he received as a child. The FOD concluded that, although his current marriage is bonafide, approval of the beneficiary’s current I-130 is barred by §204(c) because the record contains substantial and probative evidence that the former marriage was fraudulent.
The BIA began its analysis of §204(c) and its corresponding regulations by noting that the plain language of the statute and regulation “does not foreclose the application of the section 204(c) bar in cases where the prior visa petition filed on the beneficiary’s behalf was denied based on the failure to establish a bona fide marital relationship, but the marriage had not been determined to be fraudulent.” In fact, the 204(c) bar may be applied whenever “there is substantial and probative evidence of an attempt or conspiracy to enter into a marriage for the purpose of evading the immigration laws.” Citing to prior Board precedent, Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990), the opinion declared that the FOD need not give conclusive effect to determinations made in prior proceedings but should rather reach an independent conclusion based on the evidence of record. Further, explained the Board, the degree of proof required for a finding of marriage fraud sufficient to support the denial of a visa petition under §204(c) is higher than the “preponderance of the evidence” standard and more like “clear and convincing evidence,” i.e., the evidence, when viewed in its totality, must establish with sufficient probability that the marriage is a sham.
Even crediting the psychological report explaining the beneficiary’s memory problem, the BIA found that the FOD had “identified conduct of the couple after the marriage” that, unrelated to any recollection issues, indicated their subjective state of mind when they married, concluding that the prior site visit established fraud. The record also contains proof of contradictions that arose during the beneficiary’s two visa interviews as to “how, when, and where he met his first wife, as well as how their relationship progressed to marriage.
As such, held the Board, the FOD properly conducted an independent analysis of §204(c)’s applicability in adjudicating petitioner’s I-130 and, in doing so, did not erroneously equate the beneficiary’s first wife’s inability to prove the bona fides of their marriage with the beneficiary’s intent in entering into that marriage. The BIA thus upheld the FOD’s findings of substantial and probative evidence in the record that the beneficiary’s first marriage was a sham, entered into for the purpose of evading the immigration law, and dismissed the appeal. Matter of Pak, I&N Dec. 113 (BIA 2020).
