US immigration law contains very strict provisions regarding fraudulent marriages. If an individual is found to have entered into a fraudulent marriage, all subsequent visa petitions on behalf of that person must be denied. There is no room for discretion in this draconian aspect of the law. This issue may arise for individuals who have filed a green card application in the past based on marriage to a US citizen, subsequently are divorced and later wish to file a green card application based on marriage to another US citizen on based on an employment petition. If the first petition was denied because of suspected marriage fraud, the subsequent petition will often be summarily denied.
The strict language of the marriage fraud laws may lead one to believe that there is no relief from such a summary denial. However, case law and regulations provide some protection for those facing a prior finding of marriage fraud. Perhaps in recognition of the serious consequences of a finding of marriage fraud, the Board of Immigration Appeals has held that the prior finding must be examined and not merely accepted as the final word. Where the USCIS fails to follow to the Board's guidance on this issue, it is possible to challenge what may appear to be a decision set in stone.
Pursuant to INA §204(c)(1), no visa petition may be approved under INA §204 if 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…" In notifying applicants of a denial based on INA §204, the USCIS often simply refers to the prior finding of marriage fraud as the basis for the denial without further explanation.
In order to comply with relevant regulations and case law, however, the USCIS must engage in greater analysis of the prior finding of marriage fraud. The Board of Immigration Appeals has held that the evidence of a fraudulent marriage "must be documented in the alien's file and must be substantial and probative." Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990). With regard to denials based on a prior finding of marriage fraud, the BIA stated the following: "the district director 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." Id. at 168; see also Matter of Samsen, 15 I&N Dec. 28, 29 (BIA 1974). Therefore, a simple restatement of the prior determination, absent any independent conclusion based on the evidence in the record, is not sufficient under Tawfik.
It is only appropriate for the District Director to rely on a prior finding of a fraudulent marriage where the beneficiary has previously been found deportable for having procured a visa by fraud, that is, where a fraud charge was sustained in immigration court proceedings. Such a finding "inherently involves a factual determination based on clear, unequivocal, and convincing evidence, that that respondent engaged in fraudulent conduct by entering a ‘for the purpose of procuring his…entry as an immigrant.'" Matter of Agdinaoay, 16 I&N Dec. 545, 547 (BIA 1978). A prior administrative finding, however, does not inherently involve a factual determination based on "clear, unequivocal, and convincing evidence," and thus cannot be relied upon absent an independent conclusion.
If an independent conclusion was, in fact, made by the USCIS, the parties must be informed of the basis for the conclusion. The evidence relied upon should be referenced in and included with the decision to provide the parties an opportunity to properly respond. Furthermore, federal regulations require that if a decision adverse to an applicant, "is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and officer an opportunity to rebut the information…" 8 C.F.R. §103.2(b)(16)(i). If the USCIS decision relies on derogatory information unknown to the parties, it must be described in the decision in order to comply with the regulations.1
Without a detailed description of the basis for the District Director's intent to revoke the petition, it is often difficult to determine whether a decision complies with the "substantial and probative evidence" requirement of Tawfik, supra. It is similarly difficult to determine whether the decision was an "abuse of discretion." See 5 U.S.C. §706(2)(A)(setting forth the standards for review of an agency decision by a reviewing court). A court may find that such an abuse has not occurred where the factual findings underlying the decision are supported by "substantial evidence." See Ghaly v. INS, 48 F.3d 1426 (7th Cir. 1995).
The Board of Immigration Appeals and federal courts have held that a statement by the petitioner or the beneficiary affirmatively stating that a marriage was entered into for the purpose of evading immigration law may be sufficient evidence to satisfy the standards set forth in case law and in statutes. See Ghaly, supra, at 1433; Oddo v. Reno, 17 F. Supp. 2d 529, 532 (E.D. Va. 1998); Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974, *3 (N.D.Ca. 1992); Matter of Kahy, 19 I&N Dec. 803, 805 (BIA 1988). On the other hand, the fact that the petitioner and the beneficiary were not living together at the time of the visa petition denial is not evidence of a fraudulent marriage. See Tawfik, supra, at 169.
It is important for visa applicants to be aware that a petition denial based on prior marriage fraud must meet the requirements described above. If not, there is a basis to challenge the decision or to request an independent finding based on evidence in the record and additional evidence submitted by the applicants.