Section 204(c) Fraud Finding Deemed Improper by Federal District Court
Section 204(c) Backgroud
Non-citizens who are lawfully admitted into the United States and who find themselves in love and married to a United States citizen are able to apply to adjust their status to Lawful Permanent Resident (a.k.a. “green card”) after their U.S. citizen spouse files an I-130 petition on their behalf. A married couple in this position will submit an I-130 and an I-485 application simultaneously and will later attend an interview before a United States Citizenship and Immigration Services officer (USCIS), who will ask the couple a series of questions in order to determine whether the marriage was entered into for legitimate or bona fide reasons, and not simply to fraudulently to evade U.S. immigration law.
However, if an individual has ever previously committed immigration marriage fraud, the USCIS is statutorily barred from approving any future I-130 Petition filed on behalf of that individual under Section 204(c) of the Immigration and Nationality Act. The fraudulent marriage bar is very serious because it is not waivable, and there is no legal remedy to remove the bar—meaning once the non-citizen is found to have engaged in this type of fraud, she will never again be able to obtain a visa through marriage.
Substantial and Probative Evidentiary Standard of Proof
When a petitioner files an I-130 on behalf of a non-citizen, the regulations require the investigating USCIS officer to search the non-citizen’s immigration record to identify “substantial and probative evidence” of an attempt or conspiracy to enter into a marriage for purposes of evading the immigration laws in order for the fraudulent marriage bar under 204(c) to apply. Once the investigating officer has identified substantial and probative evidence in the record to indicate that the beneficiary has been an active participant in a previous marriage fraud conspiracy, it becomes the current petitioner’s job to disprove that the beneficiary previously sought an immigration benefit based on a prior fraudulent marriage.
In other words, the second petitioner is not only burdened to prove her own marriage is bona fide, but is also required to prove that her spouse’s previous marriage was not a sham marriage. If the evidence the petitioner submits is unsatisfactory to the USCIS, the I-130 will be denied. Obtaining such documentary proof can a daunting, if not impossible task because the previous marriage may have taken place years beforehand, the previous relationships may have soured, or, in the case of domestic abuse, the non-citizen may have no desire to re-establish contact with his previous spouse in order to prove the previous marriage was not fraudulent.
Recent Decision Holds 204(c) Finding Improper
A Federal District Court recently held that USCIS arbitrarily and capriciously denied a couple’s I-130 where USCIS failed to establish it had identified “substantial and probative evidence” of fraud contained in the non-citizen’s file regarding his previous marriage.
The case, which was decided in the Federal District Court for the District of Connecticut, involved a Ukrainian who married a U.S. citizen whom USCIS determined was engaged in a marriage fraud ring. When the couple completed their I-130 interview, the USCIS made a fraudulent marriage finding and entered the finding into the non-citizen’s file. The agency concluded that the non-citizen must have been a willing participant in the fraudulent marriage ring, even though there was no direct evidence that the non-citizen knew or had actually participated in the fraud ring. USCIS instead had only evidence that the United States citizen was involved in a marriage fraud ring and thus concluded that the non-citizen’s marriage to the United States must have also been fraudulent. The couple’s I-130 petition was eventually denied and the couple eventually divorced.
Years later, the non-citizen fell in love and married another United States citizen. The couple submitted an I-130 and an I-485 in order for the non-citizen to adjust his status. USCIS told them that it intended to deny the petition because the non-citizen had previously engaged in a fraudulent marriage. At this point, USCIS gave the couple the chance to provide evidence that the non-citizen’s previous marriage was not fraudulent.
The couple provided affidavits from the non-citizen’s ex-family members, postal evidence of mail sent to a shared address, photographs and other evidence requested by USCIS, but the submitted evidence was ultimately found to be insufficient and USCIS denied the petition. USCIS stated that the denial was based the 204(c) fraudulent marriage bar, and that the non-citizen was forever barred from receiving an approved I-130. The couple appealed the decision to the Board of Immigration Appeals, which upheld the denial. The couple then appealed to the Federal Court for the District of Connecticut.
The Federal Court held that USCIS acted arbitrarily and capriciously when it denied the couple’s I-130 because USCIS relied on evidence in the foreign national’s file that was not “substantive and probative” enough to support the conclusion that he had engaged in fraud. While the U.S. citizen in the first marriage had a record of participation in a marriage fraud ring, there was no direct evidence to affirm that the non-citizen had also been a participant in the ring. The court reasoned that the evidence contained in the file provided a reasonable basis to support an inference of fraud, meaning somewhat of a suspicion of fraud, but that there was no actual affirmative or direct evidence in the file that could have provided a rational basis to conclude that the non-citizen himself had engaged in fraud. The evidence that his previous U.S. citizen spouse had participated in a marriage fraud ring, by itself, did not support a finding that the foreign national had also participated in the marriage fraud ring. Thus, the conclusion that he had engaged in fraud was arbitrary and capricious.
The court also held that USCIS acted arbitrarily and capriciously when it concluded that the non-citizen’s second U.S. citizen spouse had failed to rebut the presumption that her husband’s previous marriage was entered into for fraudulent reasons. While she did not submit a large amount of evidence, the court stated that the evidence related to the previous marriage had to be viewed in light of the circumstances of that marriage. The non-citizen and his previous wife had consistently testified that they never shared any bills or car insurance or other documents because they had lived with the U.S. Citizen’s mother. Additionally, the non-citizen’s second spouse provided USCIS with sworn affidavits from the previous spouse’s sister and mother attesting that the previous marriage was bona fide.
USCIS had argued that the affidavits were not given weight because the affidavits “failed to mention, let alone comment on how it would be impossible or even unlikely that [the non-citizen] and others were involved in the  marriage fraud ring.” The Connecticut Court found that USCIS abused its discretion when using such reasoning to support a conclusion that the affidavits failed to overcome the grounds for the permanent marriage bar. The Court reasoned that the second U.S. citizen spouse should not have been penalized for the fact that the provided affidavits didn’t address specific topics or because she failed to submit evidence that simply did not exist due to the nature and circumstances of the non-citizen’s previous marriage. Given that the non-citizen’s second spouse was given the burden to prove a negative—when balanced against the USCIS’s failure to provide direct evidence of the previous fraud—the court found it was not rational for USCIS to conclude that the spouse failed to rebut the presumption of the fraudulent first marriage. The court concluded that USCIS’s actions were thus arbitrary and capricious and that the agency abused its discretion. As a result, the court required USCIS to approve the I-130.
This case illustrates the importance of evaluating eligibility and proper preparation of an immigration case, particularly where the parties were the petitioner or beneficiary in a prior case. The act of locating useful evidence, the use of sound judgment and effective arguments no doubt carried the day for the above-referenced couple in Connecticut.