P. SINGH
27 I. & N. Dec. 598 (2019)
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Rule of Law:
The standard of proof necessary to deny a visa petition based on marriage fraud under section 204(c) of the Immigration and Nationality Act is "substantial and probative evidence." This standard requires a degree of proof that is more than a preponderance of the evidence but less than clear and convincing evidence, and it can be satisfied by direct or circumstantial evidence alone.
Facts:
- The beneficiary, P. Singh, had a long-term relationship and three children with the daughter of his future wife.
- The oldest of these children is the petitioner, Riwaj Anand Singh.
- In 2005, P. Singh married his long-term partner's mother, who was the petitioner's maternal grandmother.
- In 2007, P. Singh and his partner (his wife's daughter) jointly purchased the home where he and his wife claimed to have their marital residence.
- During a 2009 site visit by immigration officers, P. Singh's wife gave conflicting statements about who lived in the home.
- An inspection of the home revealed that mail in the master bedroom was addressed to P. Singh and his partner, while the wife's personal belongings were found in a basement bedroom.
- During the site visit, the wife admitted to officers that she married P. Singh as a favor to her daughter to allow him to remain in the United States and that she lived in the basement while P. Singh and her daughter shared the master bedroom.
Procedural Posture:
- The beneficiary's wife first filed a visa petition on his behalf, which a USCIS Field Office Director denied, finding the marriage was fraudulent.
- The wife appealed that denial to the Board of Immigration Appeals (BIA), which remanded the case.
- The Director denied the petition again, and the BIA subsequently dismissed the wife's second appeal.
- On March 13, 2012, Riwaj Anand Singh, the beneficiary's son, filed a new Petition for Alien Relative (Form I-130) on behalf of his father, P. Singh.
- The Field Office Director issued a Notice of Intent to Deny the son's petition, citing the prior finding of marriage fraud which triggers a permanent bar under section 204(c) of the Act.
- After considering the petitioner's response, the Director denied the visa petition.
- The petitioner, Riwaj Anand Singh, appealed the Director's denial to the Board of Immigration Appeals.
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Issue:
Is 'substantial and probative evidence,' the standard required to establish marriage fraud under section 204(c) of the Immigration and Nationality Act, a standard of proof that is more than a preponderance of the evidence but less than clear and convincing evidence?
Opinions:
Majority - Board Member Creppy
Yes, 'substantial and probative evidence' is a standard of proof higher than a preponderance of the evidence but lower than clear and convincing evidence. To deny a visa petition under section 204(c) for marriage fraud, the government must present evidence establishing that it is 'more than probably true that the marriage is fraudulent.' The Board of Immigration Appeals (BIA) clarified that this is a standard of proof, not a standard of judicial review, and was established to be commensurate with the serious, permanent consequences of a marriage fraud finding. The BIA rejected the government's argument that the standard was equivalent to the low 'substantial evidence' threshold for judicial review, as well as the petitioner's argument that it required 'clear and convincing evidence.' The Board held that this standard can be met by the totality of the circumstances, and that circumstantial evidence alone—such as inconsistent statements, suspicious living arrangements, and relationships with third parties—can be sufficient. Applying this standard, the wife's admission, her inconsistent statements, the evidence of cohabitation with her daughter instead of her, and the joint property ownership between the beneficiary and the wife's daughter constituted substantial and probative evidence of fraud.
Analysis:
This precedential decision by the Board of Immigration Appeals provides a definitive clarification of the 'substantial and probative evidence' standard, which had been ambiguous for decades. By placing the standard of proof between a preponderance and clear and convincing evidence, the BIA strikes a balance between the government's interest in preventing immigration fraud and the severe, permanent consequences of a section 204(c) bar for an alien. The decision's explicit holding that circumstantial evidence alone can satisfy this heightened standard empowers adjudicators to find fraud based on a totality of suspicious facts, even without a direct confession. This ruling will guide all future marriage fraud adjudications by U.S. Citizenship and Immigration Services and the BIA, creating a uniform and more rigorous evidentiary framework.
