BIA Decision Offers View into the World of Marriage Fraud

A high standard to find fraud

By Andrew R. Arthur on November 3, 2020

On Friday, the Board of Immigration Appeals (BIA) issued a decision in Matter of Pak. It offers a view into the somewhat esoteric world of marriage fraud, and the standards that the government must follow in finding and proving it.

In May 2018, a U.S. Citizenship and Immigration Services (USCIS) field office director (FOD) denied a Petition for Alien Relative (Form I-130), filed by Jacklyn Hyonk Lee on behalf of her husband, Jongbum Pak. That denial was not based on anything having to do with the marriage between Lee and Pak, but rather on Pak's prior marriage.

In December 2011, Pak's then-wife (who was unnamed in the decision) filed an I-130 on his behalf. USCIS must have suspected that something was up (probably resulting from discrepancies between the answers provided by the two "regarding their courtship, marriage, and family members" when interviewed in July 2012), because a USCIS officer conducted a "site visit" at the couple's claimed marital address in Portland, Ore., on September 21, 2012.

Such visits are not standard operating procedure in all cases, but not completely unheard of, either. That visit, however, raised a few new questions.

Specifically, the wife was not there, and no items belonging to a female were found. Pak explained that his wife was working in Salem, Ore., as a babysitter for her cousin, and that he drove her to and from work to their home in Portland. He apparently had the flexibility to do so, as he worked the night shift (10 PM to 4 AM) at his father's grocery store.

But he also told the officers that his wife had an apartment in Salem (for $690 a month, which Pak paid), where she stayed while working the babysitting job. The BIA noted: "When the officer inquired why she would need an apartment in Salem if she just worked there on a daily basis, the beneficiary changed his answer and stated that she resided in Salem on the weekends."

So the officers called the wife. She explained that she kept an apartment in Salem where she went on the weekends, because her family lived there. The wife also stated that she was then in the process of moving her belongings to the marital residence, despite the fact that she had stated in the Biographic Information form (Form G-325, which is submitted with the I-130) that she had been living at the marital residence since December 2011 (more than nine months' prior).

Oh, and she asserted that she did not work as a babysitter (for her cousin or anyone else), but rather as a cashier in her father-in-law's grocery store.

The FOD (not surprisingly) issued a Notice of Intent to Deny (NOID) the I-130 filed on Pak's behalf on October 2012. The next month, finding that Pak's then-wife's answers were insufficient to explain the issues in the NOID, the FOD denied the visa petition on the grounds that his then-wife "had not demonstrated that her marriage to the beneficiary was bona fide."

The couple divorced in June 2013.

Thereafter, Pak married Lee in September 2014, and she filed a second I-130 on his behalf in December 2016. In June 2017, the couple was interviewed, and (again not surprisingly) USCIS had some questions about Pak's first marriage.

The following day, the FOD asked for information to establish that the first marriage was bona fide, and not simply entered into to gain an immigration benefit.

The petitioner responded with a letter in which she described her interactions with her husband during his first marriage. They had been "friends", she explained, she saw him wearing a wedding ring, and he had introduced her to his first wife at a restaurant.

After Pak and Lee started to date, Lee asserted, she became jealous and deleted all of the records and pictures of Pak and his first wife from his phone and computer. Pak, for his part, contended in his own letter that his ex-wife "had not taken the process of applying for lawful permanent residence seriously while he was with her", and otherwise described their relationship (in undisclosed terms).

Lee also submitted a letter from the pastor at the first wedding, who described the "simple ceremony" uniting Pak and his first wife, and stated that he had seen the two together when he went to visit.

The FOD issued another NOID, detailing the issues concerning the first visa petition. He also noted that the answers Pak gave to questions about his former marriage in the course of his interview with Lee "were inconsistent and lacking in detail." Accordingly, the FOD asserted, approval of the latest petition appeared to be foreclosed under section 204(c) of the Immigration and Nationality Act (INA).

Section 204(c) of the INA states:

Notwithstanding the provisions of subsection [204] (b) [of the INA] 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.

Note that there is no temporal restriction on when the attorney general (here USCIS) needs to make the referenced findings. Nor is the FOD bound with respect to a second petition by the findings made in the first. Rather, the FOD must make his or her own determination.

In any event, the petitioner submitted a report from a clinical psychologist, who determined that Pak suffered from "significant memory problems as a result of a traumatic brain injury he suffered when he was 5 years old." Concluding that this was not adequate to resolve the issues, the FOD denied Lee's petition under section 204(c) of the INA, "because the record contains substantial and probative evidence that the beneficiary's former marriage was fraudulent."

The petitioner appealed to the BIA. The BIA held that "[e]vidence of a fraudulent marriage 'must be documented in the alien's file and must be substantial and probative'", that is, more than just a preponderance of the evidence of fraud, but closer to clear and convincing evidence of it. In other words, "the evidence must establish that it is more than probably true that the marriage is fraudulent", when it is viewed it its totality. That is a pretty high standard.

Nonetheless, the BIA concluded that the FOD's determination had properly applied it. Specifically, his:

Summary of Findings describes significant discrepancies in the accounts given by the beneficiary and his first wife regarding (1) whether and for how long the couple lived at the claimed marital residence; (2) their places and type of employment (and whether they, in fact, worked at the same store owned by the beneficiary's father); and (3) the former wife's living arrangements in Salem and the reasons why the beneficiary paid rent for her apartment there. Additionally, the record contains documentation of contradictions that arose during the beneficiary's two visa interviews regarding how, when, and where he met his first wife, as well as how their relationship progressed to marriage.

As for the affidavits filed by Lee, Pak, and the pastor, the BIA noted: "Affidavits of this nature, alone, 'will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.'" Which, the BIA determined, was not presented.

I would like to say that this was a one-off case, but it was not. Two decades ago, when I was a trial attorney with the former INS, I had a number of cases that hinged on such site visits (including one almost identical to the one described), and I had to present evidence of fraud that met the standard. Sometimes I could, but often I could not, even when something about the marriage seemed "not quite right".

In that regard, note that 40 years ago, in Matter of Boromand (a rescission case), the BIA held that the issue when adjudicating a spousal petition is not whether the marriage is then viable (although the purported purpose of such petitions is "family unification"), but instead "whether the marriage was entered into for the primary purpose of circumventing the immigration laws." In so doing, it overruled its decision in Matter of Sosa, which denied entry to an alien spouse of a citizen where the marriage was then "nonviable".

If you really want to appreciate how difficult it is to prove marriage fraud, read the latter decision. Boromand had actually lied to the INS when he was interviewed, claiming that he was then living with his wife when he, in fact, was not. And his wife at one point thought that he was marrying her to obtain immigration benefits, although she later stated that she did not think that "respondent's immigration problems were his only reasons for marrying her" (emphasis added). He got to keep his green card.

Fraud in the immigration benefits application process undermines the immigration laws. That said, proving it is not as easy as it sounds. But not impossible.