On August 23, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by USCIS Field Office Director (FOD) denying a Form I-130 visa petition, which sought to accord status as the immediate relative parent of a U.S. citizen to the beneficiary, after requesting supplemental briefs from the parties.
As set forth in the opinion’s factual and procedural history, the case is fairly complex: the petitioner is the son of the beneficiary, who was married to the petitioner’s maternal grandmother in 2005. The beneficiary’s wife filed an I-103 on his behalf, which the FOD denied in 2009, finding “the marriage was entered into solely to obtain an immigration benefit for the beneficiary.” In 2012, the petitioner filed this visa petition and the FOD issued a Notice of Intent to Deny (NOID), based on the conclusion that the beneficiary married the petitioner’s maternal grandmother for the purpose of evading the immigration laws. After reviewing the petitioner’s response to the NOID, the FOD found the beneficiary’s prior marriage to have been fraudulent, which barred the approval of the current I-130 filed by his son; the petition was thus denied under INA §204(c). In her decision, the FOD specifically noted that “prior to the beneficiary’s marriage, he was involved in a long-term relationship with his spouse’s daughter, with whom he has three children. The petitioner is the oldest of the children, who were born in 1990, 1993, and 1999.”
The FOD also relied on a Fraud Detection/National Security (FD/NS) site visit report of a call paid on the marital residence. FD/NS spoke with the beneficiary’s wife, who provided conflicting statements about who lived in the home. Although she claimed to share the master bedroom with the beneficiary, the FD/NS report stated that an inspection of the room undermined that claim. The beneficiary’s wife also told the officers that her daughter sometimes stays overnight in the master bedroom and that, at those times, she sleeps in the basement. When asked if she sleeps alone on those occasions, she said did but, when asked where the beneficiary sleeps during her daughter’s visits, she said he also sleeps in the basement bedroom. Additionally, she was unable to explain why she and the beneficiary would leave the master bedroom when her daughter sleeps over.
The report went on to state that, after being advised of the ramifications of committing marriage fraud, the beneficiary’s spouse “admitted that she married the beneficiary as a favor to her daughter to allow him to remain in the United States.” She also admitted that she misrepresented the family’s sleeping arrangements, saying that she lives in the basement while the beneficiary and her daughter share the master bedroom. The Board finally noted that as the officers left the house, they noticed a photo of the beneficiary and his wife’s daughter in an intimate pose.
In response to the NOID, the petitioner submitted an affidavit from the beneficiary’s wife denying that she admitted her marriage was a sham, a statement from the petitioner’s mother claiming she has no ongoing relationship with the beneficiary and that the mother’s marriage to the beneficiary is legitimate, along with utility bills, tax returns, and miscellaneous affidavits contending the marriage is real.
The FOD considered the petitioner’s response but concluded that the evidence was insufficient to overcome the “substantial and probative evidence” of fraud. Petitioner contested this decision on appeal, arguing that the FOD improperly found that the evidence of marriage fraud was “substantial and probative”, which should be a high standard of proof that requires the evidence to be “clear, unequivocal, and convincing”. DHS, in turn, argued that “substantial and probative evidence” is a standard of review and that the standard of proof should be substantial evidence, which requires less than a preponderance of the evidence of fraud to trigger §204(c)’s bar.
In its analysis, the Board first discussed the standard of
proof, noting that in deciding if a marriage is a sham, the FOD “must examine
the record to determine if there is substantial and probative evidence of fraud
to warrant the denial of a visa petition” under §204(c), citing to prior BIA
8 CFR§204.2(a)(1)(ii). The decision there found held that “substantial and probative evidence” refers to the standard of proof required to prove marriage fraud, not to the standard of review.
Further, found the BIA, discoursing on the degree of proof required, this standard of proof refers to the “quality and quantity” of competent, credible and objective evidence. Because §204(c) enacts a permanent bar to the approval of all future visa petitions, the evidence of fraud must be “relatively high”, higher than a preponderance of the evidence, closer to clear and convincing evidence. Thus, held the Board, to qualify as “substantial and probative”, the evidence must establish that it is “more than probably true that the marriage is fraudulent.”
Factors to be considered in determining whether the required standard of proof has been met include significant inconsistencies coupled with minimum documentary evidence of a shared life; however, these factors, concluded the BIA, without more “would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud.” Other evidence of fraud includes proof the parties knowingly attempted to mislead immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage; confirmation that the parties have other romantic partners which whom they may have children; statements indicating that family members, employer or acquaintances do not know about the marriage or were told by the parties that it is not bonafide; or, if one or both parties file taxes as single during the marriage. While §204(c) applies to the beneficiary, found the Board, the acts of the petitioner may also be relevant. In sum, the nature, quality, quantity, and credibility of the evidence should be considered in its totality and this assessment “may be based on either direct or circumstantial evidence.”
In the instant matter, the record supports the FOD’s determination that the approval of the petition is barred by the INA §204(c), as the evidence creates a strong inference that the marriage is a sham. This constitutes “substantial and probative evidence” that the purpose of the marriage was to evade the immigration laws. Matter of Singh, 27 I & N Dec. 598 (BIA 2019).