PAK
28 I&N Dec. 113 (2020)
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Rule of Law:
A subsequent visa petition filed on behalf of a beneficiary is properly denied pursuant to section 204(c) of the Immigration and Nationality Act where there is substantial and probative evidence of fraud in a prior marriage, even if the visa petition from that prior marriage was denied for insufficient evidence rather than an explicit finding of fraud.
Facts:
- Jongbum Pak, the beneficiary, married his first wife, a U.S. citizen.
- During their marriage, Pak and his first wife provided inconsistent answers to U.S. Citizenship and Immigration Services (USCIS) officers regarding their courtship, marriage, and family members.
- A USCIS site visit to the couple's claimed marital residence in Portland, Oregon, revealed that the first wife did not reside there and there were no female belongings on the premises.
- Pak and his first wife gave conflicting accounts of her employment and living arrangements; he claimed she was a babysitter in Salem, while she claimed to be a cashier at his father's store and gave inconsistent reasons for being in Salem.
- Pak and his first wife divorced on June 13, 2013.
- Pak married his current wife, petitioner Jacklyn Hyonk Lee, on September 9, 2014.
- During an interview with Lee, Pak provided inconsistent and detail-lacking answers regarding his first marriage.
- Lee later submitted a psychological report stating Pak has significant memory problems resulting from a traumatic brain injury he suffered as a child.
Procedural Posture:
- The beneficiary's (Jongbum Pak) first wife filed a Form I-130 visa petition on his behalf on December 30, 2011.
- On October 4, 2012, the USCIS Field Office Director issued a Notice of Intent to Deny the first petition, citing discrepancies and insufficient evidence of a bona fide marriage.
- The Director denied the first visa petition on November 8, 2012, for failure to establish a bona fide marriage.
- The petitioner (Jacklyn Hyonk Lee), Pak's current wife, filed a new Form I-130 visa petition on his behalf on December 6, 2016.
- The Director issued a request for evidence regarding the first marriage and later issued a Notice of Intent to Deny the second petition, citing the § 204(c) marriage fraud bar.
- On May 1, 2018, the Director denied the second petition, finding it was barred by § 204(c) due to fraud in the beneficiary's first marriage.
- The petitioner, Jacklyn Hyonk Lee, appealed the Director's denial to the Board of Immigration Appeals (BIA).
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Issue:
Does section 204(c) of the Immigration and Nationality Act bar the approval of a visa petition for a current spouse when a prior visa petition from a former spouse was denied for insufficient evidence of a bona fide marriage, rather than an explicit finding of fraud at that time?
Opinions:
Majority - Board Member Wilson
Yes. A subsequent visa petition is properly denied under section 204(c) of the Act if there is substantial and probative evidence that the beneficiary's prior marriage was fraudulent, even if the initial petition was denied for a lesser reason, such as insufficient evidence. The Board reasoned that the plain language of § 204(c) and its implementing regulations do not impose a temporal restriction on when a marriage fraud determination can be made. Citing its precedent in Matter of Tawfik, the Board affirmed that an adjudicator in a subsequent proceeding must make an independent conclusion based on the totality of the evidence, which includes evidence from the prior petition file. The standard for finding fraud is 'substantial and probative evidence,' a standard higher than a preponderance of the evidence. In this case, the significant discrepancies from the first marriage—including the inconsistent statements about living and working arrangements and the findings from the site visit—constituted substantial and probative evidence of fraud that the petitioner's new evidence (affidavits and a psychological report) failed to overcome.
Analysis:
This decision clarifies that a prior denial of a marriage-based visa petition for insufficient evidence does not preclude USCIS from making a formal finding of fraud in a subsequent proceeding. It reinforces the principle from Matter of Tawfik that adjudicators must conduct a de novo review of all evidence on record when a prior marriage is a factor. This holding solidifies the permanent and severe consequences of the § 204(c) bar, showing that suspicious circumstances in a first petition can lead to a lifetime bar on future spousal petitions, even without an initial fraud finding. It places a significant burden on petitioners to affirmatively rebut any negative evidence from a beneficiary's past immigration history.
