27 I. & N. Dec. 598
BIA2019Background
- Beneficiary (father of petitioner) married petitioner’s maternal grandmother in 2005; a previous visa petition filed by the beneficiary’s spouse had been denied as a sham in 2009 and again on remand.
- Petitioner (U.S. citizen son) filed an I-130 for the beneficiary in 2012; USCIS issued a notice of intent to deny based on marriage-fraud evidence.
- FDNS site-visit report recorded the spouse (the grandmother) giving inconsistent statements about household occupants and admitting she married the beneficiary as a favor to her daughter so he could remain in the U.S.; physical evidence at the home suggested the daughter, not the spouse, occupied the master bedroom and co-owned the house with the beneficiary.
- Petitioner submitted affidavits, tax/financial documents, and other records asserting a bona fide marriage; spouse later denied her alleged admission.
- Director credited the FDNS report and found “substantial and probative evidence” of marriage fraud, denying the I-130 under INA § 204(c); the Board affirmed and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the meaning of the regulatory phrase “substantial and probative evidence” under INA § 204(c)? | Petitioner: it requires a high standard — "clear, unequivocal, and convincing" evidence. | DHS: the phrase is a judicial review standard ("substantial evidence") and requires less than preponderance. | The Board: it is a standard of proof (not review) that is higher than preponderance but lower than clear and convincing — "more than probably true." |
| What degree/type of evidence can satisfy the standard? | Petitioner: direct, strong proof (e.g., written confessions) required. | DHS: circumstantial evidence or lesser proof may suffice. | The Board: both direct and circumstantial evidence may satisfy the standard; circumstantial alone can be sufficient if strong in quality and quantity. |
| How should adjudicators assess fraud when evidence conflicts (e.g., repudiation of an on-site admission)? | Petitioner: site-visit admission was disputed and insufficient. | DHS: site-visit report and inconsistencies support fraud even if admission later denied. | The Board: government investigators are presumed to have performed duties in good faith; contemporaneous investigative admissions and corroborating inconsistencies may be credited over later denials. |
| Did the record here meet the "substantial and probative" standard to bar approval under § 204(c)? | Petitioner: documentary evidence of joint life and continued marriage rebut fraud finding. | DHS: investigative report and corroborating facts show fraud; petition not rebutted. | The Board: record contains substantial and probative evidence (site-visit admission, inconsistencies, co-ownership with daughter, bedroom evidence, photo) — appeal dismissed. |
Key Cases Cited
- Bark v. INS, 511 F.2d 1200 (9th Cir.) (intent to establish a life together at time of marriage is central question)
- Lutwak v. United States, 344 U.S. 604 (U.S.) (evidence of intent relevant to criminal immigration contexts)
- United States v. Elzahabi, 517 F. Supp. 2d 1121 (D. Minn.) (sham marriages used to secure immigration benefits)
- Zemeka v. Holder, 989 F. Supp. 2d 122 (D.D.C.) (discussing definition and usage of "substantial and probative evidence" in fraud context)
- Atieh v. Riordan, 797 F.3d 135 (1st Cir.) (circumstantial evidence may suffice to establish marriage fraud)
- Ghaly v. INS, 48 F.3d 1426 (7th Cir.) (confession/sworn admission is potent evidence of fraud)
- Ching v. Mayorkas, 725 F.3d 1149 (9th Cir.) (court discussion on strength and limits of direct admissions in fraud findings)