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“All happy families are alike; each unhappy family is unhappy in its own way.” Leo Tolstoy, Anna Karenina. I don’t think that quotation is accurate, but I am always happy to quote one of my favorite opening lines from one of my favorite novels. This quotation relates to this case because we are going to be talking about marriages and, more specifically, the marriage fraud bar. The Board of Immigration (BIA) held that there is no need for USCIS to make a specific finding of marriage fraud for the marriage fraud bar to apply in a case. The BIA held that where there is substantial and probative evidence that a prior marriage was fraudulent, USCIS may deny a subsequent immigrant visa under INA § 204(c). The BIA appears to be rewriting the underlying statute in this case and relying heavily on the regulations to obtain its desired result. Matter of Pak, 28 I&N Dec. 113 (BIA 2020).
Facts
In 2011, Jongbum Pak’s first wife filed an immigrant visa on his behalf. In 2012, USCIS issued a Notice of Intent to Deny (NOID) identifying discrepancies in the interview between Mr. Pak and his ex-wife. Most significantly, USCIS had gone to the couple’s home and concluded that his first wife did not live there. The couple’s home was in Portland, Oregon, and his wife had a babysitting job in Salem, Oregon. (Google Maps says that the two cities are about 46 miles apart and it’s about a 45 minute to an hour drive from one city to the other). In 2012, USCIS denied the immigrant visa petition and in 2013 the couple divorced. According to the BIA, “the Director found the former wife’s responses insufficient to resolve the issues raised in the Notice of Intent to Deny, and he denied the visa petition, concluding that she had not demonstrated that her marriage to the beneficiary was bona fide.” Matter of Pak, 28 I&N Dec. 113, 114 (BIA 2020).
About a year and a half later, Mr. Pak married Jacklyn Lee. In 2016 Ms. Lee filed an immigrant visa petition for her husband, and in 2017 the couple went to USCIS for an interview. The next day USCIS issued a Request for Evidence (RFE) asking the couple to establish that Mr. Pak’s first marriage was valid and was not entered into for immigration purposes. The couple responded to the RFE and Ms. Lee submitted a declaration saying that she deleted records and pictures of the former couple from her husband’s cell phone and computer because she was jealous. (I deal with couples all the time who talk about the drama in their relationships so this explanation seemed valid to me). The couple submitted a letter from the pastor who married Mr. Pak and his ex-wife and said that not only had he married them but, he had also visited them at their home. USCIS subsequently issued a NOID claiming that Mr. Pak had given inconsistent answers about his prior marriage at the interview and that his answers were lacking in detail. The couple submitted a psychological evaluation establishing that Mr. Pak had suffered a traumatic brain injury when he was five years old and that he had significant memory problems. (Well, that could explain the inconsistencies and the lack of detail at Mr. Pak’s interviews). USCIS determined that these answers were insufficient and denied the immigrant visa. They found that the petition was barred under INA § 204(c) because the record contained substantial and probative evidence that the beneficiary’s former marriage was fraudulent. But note what they didn’t do … they didn’t make an explicit finding of marriage fraud. The couple appealed the denial.
Legal Analysis
I think the best way to analyze this case is to look at the statute and the regulation at issue. The statute provides as follows:
“Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”
INA § 204(c) (emphasis added). Based on that language it seems pretty clear to me that the Attorney General must make an explicit finding of marriage fraud. (Technically, in 2002 Congress transferred these powers to the Secretary of the Department of Homeland Security, 6 U.S.C. § 557, and the Secretary, in turn, delegated these powers to the field office directors. 8 C.F.R. § 100.1). The point is that someone has to make an explicit finding of marriage fraud to trigger INA § 204(c).
But, the BIA appears to rely on the regulations to deny this case. The regulations provide:
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien has been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien’s file.”
8 CFR § 204.2(a)(1)(ii) (emphasis added). What is interesting about the interplay between the statute and the regulation, is that the way I read it, the Attorney General (well, technically the field office director) has to make a finding of marriage fraud, and the standard used to make such a finding is whether there is substantial and probative evidence of an attempt to enter into a marriage for the purpose of evading the immigration laws. But I am not a member of the BIA.
Instead of agreeing with me, the BIA held, “the plain language of the statute and the regulations does not foreclose the application of Section 204(c) bar in cases where the prior visa petition filed on the beneficiary’s behalf was denied based on failure to establish a bona fide marital relationship, but the marriage had not been determined to be fraudulent.” Matter of Pak, 28 I&N Dec. at 116-117 (emphasis added). I would beg to differ.
Standard of Evidence to Determine Whether a Marriage is Fraudulent
The BIA discusses the standard to determine whether a marriage is fraudulent. In other words, what exactly is “substantial and probative evidence” in this situation? The BIA held that the standard is higher than a preponderance of the evidence and closer to clear and convincing evidence. Matter of P. Singh, 27 I&N Dec. 589, 607 (BIA 2019) cited with approval in Matter of Pak, 28 I&N Dec. at 118. The application of this standard requires examination of all of the relevant evidence and a determination as to whether such evidence when viewed in its totality establishes with sufficient probability that the marriage is fraudulent. Matter of P. Singh, 27 I&N Dec. at 607, cited in Matter of Pak, 28 I&N Dec. at 118.
There are no Time Limits
But the BIA’s decision, in this case, goes even further. The BIA held that “the broad phrasing and the absence of a temporal requirement suggest that section 204(c) may be applied based on a marriage fraud finding whenever it becomes evident that there is substantial and probative evidence” of marriage fraud. Id., at 117. That language is very troubling. It suggests that USCIS can find marriage fraud at any time. There do not appear to be any safeguards for the immigrant. But wait, it gets worse. The BIA noted that USCIS “should not give conclusive effect to determinations made in a prior proceeding, but rather, should reach his own independent conclusion based on the evidence before him.” Matter of Pak, 28 I&N Dec. at 17, citing with approval Matter of Tawfik, 20 I&N Dec. 166, 168 (BIA 1990). Just think about that! A noncitizen could be applying for citizenship after having been a lawful permanent resident for thirty years and USCIS could request evidence that a marriage entered into thirty years ago was valid at its inception. Who keeps those types of records? How are you going to establish the validity of a one- or two-year marriage from thirty years ago?
Conclusion
The BIA concluded that the fact that USCIS did not make a finding of marriage fraud when they denied the visa filed by Mr. Pak’s first wife does not preclude a finding of marriage fraud. And, having reviewed all of the evidence they found that there was substantial and probative evidence in the record that the prior marriage was fraudulent and was entered into for the purposes of evading the immigration laws. Accordingly, they denied Mr. Pak’s immigrant visa.